        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1196
KA 13-00320
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                             MEMORANDUM AND ORDER

TERRANCE WILLIAMS, DEFENDANT-RESPONDENT.


WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR APPELLANT.

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN MCDERMOTT OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County (John
J. Brunetti, A.J.), dated August 10, 2012. The order reduced a count
of the indictment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed.

     Memorandum: The People appeal from an order that granted in part
defendant’s motion to dismiss the indictment based on the legal
insufficiency of the evidence before the grand jury by reducing the
first count of the indictment. We affirm. Contrary to the contention
of the People, we conclude that the evidence presented to the grand
jury is not legally sufficient to establish a prima facie case of
reckless endangerment in the first degree (Penal Law § 120.25), and
Supreme Court therefore properly reduced that count to reckless
endangerment in the second degree (§ 120.20). Legally sufficient
evidence is “competent evidence which, if accepted as true, would
establish every element of an offense charged and the defendant’s
commission thereof” (CPL 70.10 [1]; see People v Jensen, 86 NY2d 248,
252). “In the context of a [g]rand [j]ury proceeding, legal
sufficiency means prima facie proof of the crimes charged, not proof
beyond a reasonable doubt” (People v Bello, 92 NY2d 523, 526).

     Pursuant to Penal Law § 120.25, “[a] person is guilty of reckless
endangerment in the first degree when, under circumstances evincing a
depraved indifference to human life, he [or she] recklessly engages in
conduct which creates a grave risk of death to another person” (see
People v Boutin, 81 AD3d 1399, 1399-1400, lv denied 17 NY3d 792).
Depraved indifference to human life is a culpable mental state that
has “the same meaning in both the depraved indifference murder statute
and the reckless endangerment statute” (People v Feingold, 7 NY3d 288,
290; see People v Lewie, 17 NY3d 348, 358). “[D]epraved indifference
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                                                         KA 13-00320

is best understood as an utter disregard for the value of human life—a
willingness to act not because one intends harm, but because one
simply doesn’t care whether grievous harm results or not” (Feingold, 7
NY3d at 296 [internal quotation marks omitted]). To evince depraved
indifference, the actor’s reckless conduct must be so imminently
dangerous that it presents a grave risk of death (see People v Graham,
14 AD3d 887, 889, lv denied 4 NY3d 853). “[T]his calculus requires an
objective assessment of the degree of risk presented by defendant’s
reckless conduct” (id. [internal quotation marks omitted]; see People
v Lynch, 95 NY2d 243, 247). Generally, the conduct of a person who
acts with depraved indifference to human life endangers a number of
people, such as when a person fires a weapon into a crowd (see People
v Suarez, 6 NY3d 202, 214). Courts, however, have upheld depraved
indifference convictions involving conduct that endangered only one
person where the defendant’s actions “reflect wanton cruelty,
brutality or callousness directed against a particularly vulnerable
victim, combined with utter indifference to the life or safety of the
helpless target of the perpetrator’s inexcusable acts” (id. at 613;
see Boutin, 81 AD3d at 1400; People v Coon, 34 AD3d 869, 870).

     Here, we conclude that the evidence before the grand jury, viewed
in the light most favorable to the People (see People v Jennings, 69
NY2d 103, 114), was legally insufficient to support a finding that
defendant acted with depraved indifference to human life (see Penal
Law § 120.25; Lewie, 17 NY3d at 359). Specifically, the evidence
established that defendant engaged in unprotected sex with the victim
on two to four occasions without disclosing his HIV positive status.
Shortly after their sexual relationship ended, defendant told the
victim that a former sexual partner had tested positive for HIV and
urged the victim to be tested. The victim was diagnosed as HIV
positive several months later. We conclude that, although defendant
may have acted with indifference to the victim’s health, his conduct
lacked the “ ‘wanton cruelty, brutality, or callousness’ ” required
for a finding of depraved indifference toward a single victim (Coon,
34 AD3d at 870). Defendant told the police that he did not disclose
his HIV positive status to the victim because he was “afraid [the
victim] would not want to be with” him, and that he “loved [the
victim] so very much.” Defendant wrote a letter apologizing to the
victim because he was “so upset” and “felt terrible.” The fact that
defendant encouraged the victim to be tested for HIV indicates that
defendant “was trying, however weakly and ineffectively,” to prevent
any grave risk that might result from his conduct (Lewie, 17 NY3d at
359). We thus conclude that, “while the evidence certainly shows that
defendant cared much too little about [the victim]’s safety, it cannot
support a finding that [he] did not care at all” (id.).

     We further conclude that the grand jury evidence, viewed in the
light most favorable to the People (see Jennings, 69 NY2d at 114),
also did not establish that defendant’s conduct presented a grave risk
of death to the victim (see Penal Law § 120.25; Lynch, 95 NY2d at
247). The victim’s physician, an infectious disease expert, testified
that the ability to treat HIV has increased dramatically over the past
15 years, with over 20 different antiviral medications available for
treatment. The expert testified that although an HIV positive
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                                                         KA 13-00320

diagnosis may have been tantamount to a death sentence in the past,
with treatment, the prognosis today is “outstanding,” particularly
when a patient promptly learns that he or she is infected and seeks
treatment. Indeed, the expert testified that patients with HIV who
take their medication, eat well, do not smoke, and reduce their
alcohol intake can live a “very healthy, normal lifestyle,” and he
expected a similar prognosis for the victim. We thus conclude that,
under the circumstances of this case, the People failed to establish
that defendant’s reckless conduct posed a grave or “very substantial”
risk of death to the victim (People v Roe, 74 NY2d 20, 24).




Entered:   November 15, 2013                    Frances E. Cafarell
                                                Clerk of the Court
