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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 4
The People &c.,
            Appellant,
        v.
Terrance Williams,
            Respondent.




          James P. Maxwell, for appellant.
          Kristen N. McDermott, for respondent.
          Center for HIV Law and Policy et al.; New York Civil
Liberties Union, et al., amici curiae.




MEMORANDUM:
          The order of the Appellate Division should be affirmed.
          The victim and defendant Terrance Williams became
friends in July 2010.   Their friendship turned intimate sometime
later in the summer, when they engaged in anal sexual conduct.
During their early sexual encounters, the victim and defendant
used protection; however, they eventually had unprotected sex.

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The first time this happened, the victim reached for a condom
only to have defendant take the condom away from him.    The victim
asked defendant four times if it was safe for them to engage in
unprotected sex, and defendant reassured him that it was.    Prior
to this occasion, the victim and defendant had frequently
discussed the human immunodeficiency virus (HIV) and the need to
be careful to avoid infection.
             In October 2010, defendant informed the victim that he
might be HIV positive.    Defendant explained that a previous
sexual partner of his was infected by HIV, and that the two had
engaged in unprotected sex.    Defendant urged the victim to get
tested for HIV.    Shortly after this, in November 2010, the victim
broke off his relationship with defendant.    Then in February
2011, the victim became very ill, experiencing nausea, vomiting,
diarrhea, and a severe sore throat, among other symptoms.    He
learned that he was HIV positive, and that his symptoms were a
byproduct of his body's inability to fight infection.    Since
August 2011, the victim has taken medication to stave off
infection.    Without this medication, he would eventually develop
acquired immunodeficiency syndrome (AIDS).
             In April 2011, two months after the victim found out
that he was HIV positive, defendant sent a letter to him through
social media.    In the letter, defendant admitted that he had been
diagnosed as HIV positive before he and the victim became
intimate.    Defendant expressed remorse about lying, saying "i


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want to start by saying that i sincerely apologize for giving you
hiv."   Further, "i made my biggest mistake the night i said i
didn't want to use a condom knowing my status but still being so
deep in love with you that i wanted us to be one person . . . i
was selfish and i was more so concerned with my own false
happiness than you [sic] health."   The victim contacted the
police.
           In his subsequent appearance before the grand jury, the
victim testified that he must take medication for the rest of his
life, and that the medicine, combined with his psychological
reaction to his HIV diagnosis, results in anxiety, nausea, mood
swings, inability to stay awake, rashes and other symptoms.
Based on the victim's testimony and that of the detective who
interviewed defendant and a physician who is an expert on HIV and
AIDS, the grand jury charged defendant with one count of first-
degree reckless endangerment (Penal Law § 120.25) and one count
of third-degree assault (Penal Law § 120.00 [2]).   Defendant
moved to dismiss both counts of the indictment on the ground of
legal insufficiency.   By decision and order dated August 10,
2012, Supreme Court reduced the count of first-degree reckless
endangerment to second-degree reckless endangerment (Penal Law §
120.20), and otherwise denied defendant's motion.
           First-degree reckless endangerment consists of four
elements: conduct that creates a grave and unjustifiable risk of
another person's death; awareness and conscious disregard of that


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risk; the grave and unjustifiable risk is of a nature and degree
that constitutes a gross deviation from the standard of conduct a
reasonable person would observe in the situation; and the conduct
occurred under circumstances evincing a depraved indifference to
human life.   Supreme Court ruled that, based on the physician's
testimony about advances in medical treatment, neither HIV nor
AIDS poses a grave risk of death.    It additionally determined
that there was insufficient evidence that defendant acted with
the requisite depraved mental state.
          The People appealed, and in November 2013 the Appellate
Division affirmed (111 AD3d 1435 [4th Dept 2013]).    The court
concluded that the grand jury evidence, when viewed in the light
most favorable to the People, did not make out a prima facie case
that defendant acted with the wanton cruelty, brutality, or
callousness required to establish depraved indifference toward a
single victim.   The court also agreed with Supreme Court that the
grand jury evidence, again viewed in the light most favorable to
the People, did not show that defendant's conduct presented a
grave risk of death to the victim.     A Judge of this Court granted
the People leave to appeal (22 NY3d 1091 [2014]), and we now
affirm.
          Depraved indifference is a culpable mental state which
means the same thing in the murder and reckless endangerment
statutes (People v Feingold, 7 NY3d 288, 290 [2006]).     As we
explained in People v Suarez (6 NY3d 202, 212 [2005]), "[a]


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defendant may be convicted of [a depraved indifference crime]
when but a single person is endangered in only a few rare
circumstances"; specifically, where the defendant exhibits
"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 213).   Here, there is no evidence that
defendant exposed the victim to the risk of HIV infection out of
any malevolent desire for the victim to contract the virus, or
that he was utterly indifferent to the victim's fate (see People
v Lewie, 17 NY3d 348, 359 [2011] [the defendant did not exhibit
depraved indifference when she failed to stop the abuse of her
child; although "the evidence . . . show(ed) that (she) cared
much too little about her child's safety, it cannot support a
finding that she did not care at all"]).   Without a doubt,
defendant's conduct was reckless, selfish and reprehensible.
Under our caselaw, though, this is not enough to make out a prima
facie case of depraved indifference.*

     *
      The dissent objects that "[i]t is irrelevant that defendant
may have expressed remorse six months after he and the victim had
unprotected sex" (dissenting op at 2-3). But "[t]he mens rea of
depraved indifference to human life can, like any other mens rea,
be proved by circumstantial evidence" (Feingold, 7 NY3d at 296).
Certainly, defendant's unprompted confession and expression of
guilt and contrition constitute circumstantial evidence of his
state of mind when he disingenuously persuaded the victim to
engage in unprotected sex. The point here, though, is that there
is simply no evidence in the grand jury record, circumstantial or
otherwise, of wanton cruelty, brutality or callousness toward the
fate of a single victim.

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          Finally, we need not and do not decide whether HIV
infection creates a grave and unjustifiable risk of death in
light of the medical advances in treatment made since the scourge
of AIDS was first identified.




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People of the State of New York v Terrance Williams
No. 4




PIGOTT, J.(dissenting):
          A grand jury may indict a person for an offense "when
(a) the evidence before it is legally sufficient to establish
that such person committed [that] offense . . ., and (b)
competent and admissible evidence before it provides reasonable
cause to believe that such person committed [that] offense" (CPL
190.65 [1] [a], [b]).   The first prong requires the People to
present a prima facie case, which "is properly determined by
inquiring whether the evidence viewed in the light most favorable
to the People, if unexplained and uncontradicted, would warrant
conviction by a petit jury" (People v Jennings, 69 NY2d 103, 114
[1986], citing People v Pelchat, 62 NY2d 97, 105 [1984]).     "In
the context of a Grand Jury proceeding, legal sufficiency means
prima facie proof of the crimes charged, not proof beyond a
reasonable doubt" (People v Bello, 92 NY2d 523, 526 [1998],
citing People v Mayo, 36 NY2d 1002 [1975]).   Because, in my view,
the People presented a legally sufficient case as to the elements
of depraved indifference and grave risk of harm, I respectfully
dissent and would reinstate the count of reckless endangerment in




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the first degree.1
          The People's evidence established that defendant knew
at the time he engaged in sexual conduct with the victim that he
had been infected with the human immunodeficiency virus (HIV).
The victim was unaware of defendant's condition.   Prior to
engaging in unprotected intercourse, defendant and the victim had
spoken about the need for people to be careful when engaging in
unprotected sex, but defendant intentionally failed to tell the
victim that defendant had been diagnosed with HIV in December
2009, eight months before he and the victim had met.   The grand
jury testimony established that when the victim reached for a
condom, defendant took it away from the victim and, after the
victim had asked defendant four times whether it was safe to
engage in unprotected sex with defendant, defendant responded
that it was "okay."   These facts, viewed in the light most
favorable to the People, established at the very least that
defendant acted with "wanton cruelty, brutality or callousness"
and "utter indifference" to the victim's fate (People v Suarez, 6
NY3d 202, 213 [2005]).
          It is irrelevant that defendant may have expressed



     1
        Like the majority, I will not detail the proof concerning
the issue of whether defendant exposed the victim to a grave and
unjustifiable risk of death, other than to state that, on this
record, the medical testimony proffered by the People's expert,
viewed in the light most favorable to the People, was legally
sufficient to establish the "grave and unjustifiable risk of
death" element.

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remorse six months after he and the victim had unprotected sex.
The critical inquiry is whether defendant exhibited a depraved
state of mind at the time the offense was committed, not whether
defendant felt bad about what he had done months after the fact.
The grand jury plainly believed that there was reasonable cause
to believe that a crime had been committed.   That determination
was based on the evidence that, viewed in the light most
favorable to the People, defendant had exhibited a depraved
mental state.
          Although the majority has decided that the proof
presented at the grand jury established, at most, that defendant
"cared much too little" about the victim's health (as opposed to
establishing that defendant "did not care at all"), this Court is
prohibited from weighing the facts to determine whether the
People met their burden of presenting legally sufficient evidence
to the grand jury by considering defendant's post-incident letter
of remorse.   The grand jury apparently believed that defendant
"did not care at all," and, based on the evidence presented, we
are in no position to disagree (see Bello, 92 NY2d at 526
[stating that the fact that other inferences may be drawn from
the facts presented "is irrelevant to the sufficiency inquiry" so
long as the grand jury could have drawn an inference of guilt
from those facts]).




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*   *   *   *   *   *   *   *    *      *   *   *   *   *   *   *   *
Order affirmed, in a memorandum. Chief Judge Lippman and Judges
Read, Rivera and Abdus-Salaam concur. Judge Pigott dissents in
an opinion. Judges Stein and Fahey took no part.

Decided February 19, 2015




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