Defendant’s Having Unprotected Sex with Partner After Defendant’s HIV-Positive Diagnosis Did Not Constitute “Depraved Indifference”

The Court of Appeals determined that the “depraved indifference” standard in the first degree reckless endangerment statute was not met by the facts.  Defendant had (consensual) unprotected sex with his partner after the defendant was diagnosed as HIV positive.  The defendant’s partner was subsequently diagnosed as HIV positive:

Depraved indifference is a culpable mental state which means the same thing in the murder and reckless endangerment statutes … . As we explained in People v Suarez (6 NY3d 202, 212 [2005]), “[a] 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 .. . People v Williams, 2015 NY Slip Op 01485, CtApp 2-19-15