| People v Williams |
| 2013 NY Slip Op 07636 [111 AD3d 1435] |
| November 15, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Appellant, vTerrance Williams, Respondent. |
—[*1] Frank H. Hiscock Legal Aid Society, Syracuse (Kristen McDermott of counsel), fordefendant-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'smotion to dismiss the indictment based on the legal insufficiency of the evidence beforethe grand jury by reducing the first count of the indictment. We affirm. Contrary to thecontention of the People, we conclude November 20, 2013 that the evidence presented tothe grand jury is not legally sufficient to establish a prima facie case of recklessendangerment in the first degree (Penal Law § 120.25), and Supreme Courttherefore properly reduced that count to reckless endangerment in the second degree(§ 120.20). Legally sufficient evidence is "competent evidence which, if acceptedas true, would establish every element of an offense charged and the defendant'scommission thereof" (CPL 70.10 [1]; see People v Jensen, 86 NY2d 248, 252[1995]). "In the context of a [g]rand [j]ury proceeding, legal sufficiency means primafacie proof of the crimes charged, not proof beyond a reasonable doubt" (People vBello, 92 NY2d 523, 526 [1998]).
Pursuant to Penal Law § 120.25, "[a] person is guilty of recklessendangerment in the first degree when, under circumstances evincing a depravedindifference to human life, he [or she] recklessly engages in conduct which creates agrave risk of death to another person" (see People v Boutin, 81 AD3d 1399, 1399-1400 [2011],lv denied 17 NY3d 792 [2011]). Depraved indifference to human life is aculpable mental state that has "the same meaning in both the depraved indifferencemurder statute and the reckless endangerment statute" (People v Feingold, 7 NY3d288, 290 [2006]; seePeople v Lewie, 17 NY3d 348, 358 [2011]). "[D]epraved indifference is bestunderstood as an utter disregard for the value of human life—a willingness to actnot because one intends harm, but because one simply doesn't care whether grievousharm results or not" (Feingold, 7 NY3d at 296 [internal quotation marksomitted]). To evince depraved indifference, the actor's reckless conduct must be soimminently dangerous that it presents a grave risk of death (see People v Graham, 14AD3d 887, 889 [2005], lv denied 4 NY3d 853 [2005]). "[T]his calculusrequires an objective assessment of the degree of risk presented by defendant's recklessconduct" (id. [internal quotation marks omitted]; see People v Lynch, 95NY2d 243, 247 [2000]). Generally, the conduct of a [*2]person who acts with depraved indifference to human lifeendangers a number of people, such as when a person fires a weapon into a crowd (see People v Suarez, 6 NY3d202, 214 [2005]). Courts, however, have upheld depraved indifference convictionsinvolving conduct that endangered only one person where the defendant's actions "reflectwanton cruelty, brutality or callousness directed against a particularly vulnerable victim,combined with utter indifference to the life or safety of the helpless target of theperpetrator's inexcusable acts" (id. at 213; see Boutin, 81 AD3d at1400; People v Coon, 34AD3d 869, 870 [2006]).
Here, we conclude that the evidence before the grand jury, viewed in the light mostfavorable to the People (see People v Jennings, 69 NY2d 103, 114 [1986]), waslegally insufficient to support a finding that defendant acted with depraved indifferenceto human life (see Penal Law § 120.25; Lewie, 17 NY3d at 359).Specifically, the evidence established that defendant engaged in unprotected sex with thevictim on two to four occasions without disclosing his HIV positive status. Shortly aftertheir sexual relationship ended, defendant told the victim that a former sexual partner hadtested positive for HIV and urged the victim to be tested. The victim was diagnosed asHIV positive several months later. We conclude that, although defendant may have actedwith indifference to the victim's health, his conduct lacked the " 'wanton cruelty,brutality, or callousness' " required for a finding of depraved indifference toward a singlevictim (Coon, 34 AD3d at 870). Defendant told the police that he did notdisclose his HIV positive status to the victim because he was "afraid [the victim] wouldnot want to be with" him, and that he "loved [the victim] so very much." Defendantwrote a letter apologizing to the victim because he was "so upset" and "felt terrible." Thefact 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 mightresult from his conduct (Lewie, 17 NY3d at 359). We thus conclude that, "whilethe evidence certainly shows that defendant cared much too little about [the victim]'ssafety, 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 favorableto the People (see Jennings, 69 NY2d at 114), also did not establish thatdefendant'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 infectiousdisease expert, testified that the ability to treat HIV has increased dramatically over thepast 15 years, with over 20 different antiviral medications available for treatment. Theexpert testified that although an HIV positive diagnosis may have been tantamount to adeath 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, donot smoke, and reduce their alcohol intake can live a "very healthy, normal lifestyle," andhe expected a similar prognosis for the victim. We thus conclude that, under thecircumstances of this case, the People failed to establish that defendant's reckless conductposed a grave or "very substantial" risk of death to the victim (People v Roe, 74NY2d 20, 24 [1989]). Present—Smith, J.P., Peradotto, Lindley, Valentino andWhalen, JJ.