A unanimous five-judge panel of the New York Appellate Division, 4th Department, has rejected an argument by the office of Syracuse District Attorney William Fitzpatrick that an HIV-positive man should face felony charges carrying a mandatory minimum prison term for exposing another person to HIV by failing to disclose his infection before engaging in unprotected sex. The court approved a decision by Onondaga County Supreme Court Justice John J. Brunetti to reduce the charge to a misdemeanor in People v. Williams, 2013 N.Y. Slip. Op. 7636, 2013 N.Y. App. LEXIS 7558 (November 15, 2013).
According to the court’s opinion, Terrance Williams “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.” The victim, whose sex is not mentioned in the opinion, then complained to law enforcement. Williams was indicted under N.Y. Penal Law Section 120.25, “reckless endangerment in the first degree,” a Class D felony with a potential prison sentence of 2-7 years. That provision states that a person is guilty of the offence when “under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person.”
Williams, represented by Kristen McDermott of the Frank H. Hiscock Legal Aid Society in Syracuse, moved to have the charges reduced, arguing that the facts would not support the felony charge. He had 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.” When he found out the victim was diagnosed, he wrote a letter apologizing “because he was ‘so upset’ and ‘felt terrible’.” Williams argued that these facts would not support a finding that he exhibited “depraved indifference to human life” or that his conduct created “a grave risk of death to another person.”
The victim’s doctor offered testimony that ended up supporting Williams’ motion. As summarized in the Appellate Division’s opinion, the doctor, “an infectious disease expert, testified that the ability to treat HIV has increased dramatically over the past 15 years, with over 20 different anti-viral medications available for treatment. The expert testified that although an HIV positive 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.”
In light of this testimony, Justice Brunetti agreed with the defendant that he had been over-charged, and reduced the charge to “reckless endangerment in the second degree” under Penal Law section 120.20, which is a Class A misdemeanor with a maximum prison sentence of up to one year, although a trial judge has discretion to impose penalties other than incarceration (such as, for example, community service and/or supervised probation). The District Attorney appealed Justice Brunetti’s decision to reduce the charges, but the Appellate Division unanimously upheld Justice Brunetti.
“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,” wrote the court. “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.” Thus, he could not be found to have been totally indifferent to the health of the victim, a necessary finding for “depraved indifference.” Furthermore, the court found that the doctor’s testimony, which was not contradicted by any evidence from the prosecution, “failed to establish that defendant’s reckless conduct posed a grave or ‘very substantial’ risk of death to the victim.”
This opinion stands in stark contrast to rulings from other jurisdictions that have upheld lengthy prison sentences on similar facts, usually citing outdated medical sources about the mortality prognosis from HIV infection. Those opinions tend to come from jurisdictions whose legislatures reacted to the AIDS epidemic by passing specific laws criminalizing knowing exposure to HIV and mandating severe sentences. New York, by contrast, has dealt with HIV transmission under its general penal code provisions, leaving the courts with flexibility to take account of new medical information and the facts of individual cases. If Williams is a first offende, he may end up not having to serve any prison time in this case, although the prosecutor’s pursuit of a felony charge on appeal doesn’t suggest that a lenient plea-bargain is in the offing.Tags: appeal of felony charges for HIV transmission, criminal penalties for HIV transmission, disclosure of HIV status to sex partners, HIV transmission, New York Appellate Division, Syracuse District Attorney