Tagged: grave risk of death

NY Court of Appeals Issues an Opinion on Depraved Indifference

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

The New York State Penal Code provides serious penalties in situations where a defendant’s reckless conduct toward others manifests “depraved indifference to human life” and exposes a victim to “a grave risk of death.” When these elements can be proven and the victim dies as a result, a defendant can be subject to conviction for second-degree murder, pursuant to N.Y. Penal Law § 125.25(2) (McKinney 2015). When the victim does not die, the defendant can be subject to conviction for reckless endangerment in the first degree, pursuant to N.Y. Penal Law § 120.25 (McKinney 2015).

In an opinion issued on February 19, 2015, the N.Y. Court of Appeals addressed the latter situation in the case of People v. Williams, 2015 N.Y. Slip Op. 01486 (Feb. 19, 2015). In this case, a prosecutor pursued a first-degree reckless endangerment charge against Mr. Williams because he did not disclose the fact that he knew he was HIV positive to a male partner with whom he had unprotected anal intercourse on several occasions and because Mr. Williams responded affirmatively to his partner’s questions about whether it was safe to engage in unprotected sex. The defendant’s partner subsequently became very ill, was diagnosed as HIV positive, and was put on a lifetime regimen of medications to stave off AIDS.

As noted in my previous post, in recent years the Court of Appeals has restricted the application of depraved indifference charges, finding that prosecutors often pursued such charges when not merited. Of particular relevance to the recent Williams case is this Court’s decision in People v. Suarez, 6 N.Y.3d 202, 844 N.E.2d 721, 811 N.Y.S.2d 267 (2005) holding that when a defendant’s reckless conduct endangers only one person, a prosecutor must show that the defendant exhibited “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.”

In Williams, the grand jury returned an indictment on one count of first-degree reckless endangerment, N.Y. Penal Law § 120.25, and on one count of third-degree assault, N.Y. Penal Law § 120.00(2) (McKinney 2015). Upon defendant’s motion to dismiss both counts arguing legally insufficient evidence, the Supreme Court denied the motion as to the assault charge but reduced the reckless endangerment charge from first degree to second degree. The prosecutor appealed and the Appellate Division, Fourth Department, affirmed holding that viewing the evidence in the light most favorable to the prosecution, (1) the evidence was legally insufficient to support proof of the mental state requirement of depraved indifference and (2) given favorable medical advances in treatment of HIV positive patients, the defendant’s conduct did not expose the victim to a grave risk of death.

On further appeal, several civil rights, public health, and HIV advocacy organizations submitted, or joined in, amicus briefs supporting the defendant. The Center for HIV Law and Policy, on behalf of itself and several other groups, argued in its brief that “[u]sing the criminal law to prosecute and penalize people living with HIV for conduct that would be legal if they did not get tested or know their status reinforces prejudice and undermines important government-funded HIV testing, treatment, and prevention efforts.”

The Court of Appeals affirmed the Fourth Department’s decision and held that although it had no doubt that “defendant’s conduct was reckless, selfish and reprehensible,” the evidence presented to the grand jury was insufficient to support a prima facie case that the defendant acted with depraved indifference. Reviewing the testimony presented to the grand jury, the Court found that there was 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.”

Given its holding on the failure of proof regarding the required mental state element, the Court of Appeals explicitly declined to address the “grave risk” element of whether, in light of modern medical science, HIV infection creates a grave risk of death.

Related Reading:

N.Y. Court of Appeals Judge Robert Smith Hears His Last Oral Arguments

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

On November 19, 2014, the Court of Appeals heard oral arguments in four cases, two of which presented criminal procedure issues relating to whether a defendant can employ a post-verdict, pre-sentence CPL § 330.30 motion to raise issues based on facts not discovered until after the verdict was rendered and have such facts considered as part of the record for purposes of direct appeal. In response to probing questions from the Court, all attorneys involved made forceful and well-informed arguments.

The November 19 arguments were the last that Judge Robert Smith will hear prior to his retirement from the Court. In accord with Court of Appeals tradition, at the conclusion of the arguments the other members of the Court rose and applauded Judge Smith. Chief Judge Lippman expressed his thanks and admiration to Judge Smith for his dedicated service to the Court before an audience that included the Judge’s family and virtually all members of the Court staff.

One of the most important legacies of Judge Smith’s tenure regarding criminal justice issues is the strong and thoughtful stance he took in many cases to curb prosecutors’ unfounded employment of a depraved indifference murder charge pursuant to N.Y. Penal Law § 125.25(2).  Section 125.25(2) provides for a second degree murder charge in cases where a defendant, without intent, causes the death of another person “[u]nder circumstances evincing a depraved indifference to human life [when the defendant] engages in conduct which creates a grave risk of death ….”

Dissenting in a case in which the Court majority upheld three depraved indifference murder convictions, Judge Smith stated that

experience shows that juries, especially in cases with inflammatory facts, will often find depraved indifference where the evidence does not support it, and as a result we have reversed many convictions in recent years because the proof of this mens rea was insufficient.

In the cases in question, Judge Smith found that the facts showed at most a basis for conviction on a lesser charge of second degree manslaughter. He cautioned the majority that its affirmance of the murder convictions “departs from the rigor we have previously shown [in depraved indifference murder appeals] and makes it more difficult to attain our long-sought goal of reserving convictions of this crime for the very few cases that warrant them.”

This writer was one of the clerks employed by Judge Smith when he took the bench in January 2004. After oral arguments one day during the winter of 2004, my co-clerks and I met with the Judge to discuss that day’s oral arguments. In a criminal appeal argued that day, when the Court pressed the defense attorney on a secondary argument he made for his client, the attorney responded in a sheepish way and declined to pursue that argument. Judge Smith asked us what we thought about this: he wanted to convey that the attorney’s response was unacceptable. He told us that the attorney had a basis to support this argument and that he should have presented it, prefacing his argument by saying: “It is my responsibility to fight for my client’s liberty with everything I have.”


  • People v. Heidgen, 3 N.E.3d 657 (N.Y. 2013) (Smith, J., dissenting)