Judge rules 2nd time: prosecutors don't have sufficient evidence that unprotected sex with someone with HIV creates a "grave risk" of death

By Jim O'Hara, The Post-Standard 
Syracuse, NY - For the second time in as many months a judge has ruled Onondaga County prosecutors don't have sufficient evidence that unprotected sex with someone with HIV creates a "grave risk" of death.

In a 13-page decision made public today, state Supreme Court Justice John Brunetti ruled the District Attorney's Office did not have evidence to support a felony reckless endangerment prosecution against Terrance Williams for knowing he had HIV and having unprotected sex with another man.

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Instead, the judge ordered the felony charge of first-degree reckless endangerment reduced to a misdemeanor count of second-degree reckless endangerment. The judge also ruled there was sufficient evidence to support a prosecution for a misdemeanor charge of third-degree assault.

Williams, 23, has been indicted twice on felony reckless endangerment charges based on allegations he created a grave risk of death to another man from July to October 2010 by engaging in consensual sex without revealing he had been diagnosed as HIV positive in December 2009.

Brunetti dismissed the felony charge the first time last month, ruling that the prosecution could not prove a grave risk of death to the victim without having presented expert medical testimony to the grand jury about the nature of the HIV virus, AIDS and the prognosis for someone diagnosed with either condition now.

The prosecution presented new evidence to another grand jury in obtaining an indictment again charging Williams with felony reckless endangerment.

But in the latest decision, Brunetti concluded the testimony of the victim's treating physician, Dr. Timothy Paul Endy, did not provide sufficient proof for that charge either.

With respect to patients with AIDS, Endy testified that treatment with the appropriate medications enables such patients to recover and live a normal lifestyle, the judge noted.

With respect to patients with the HIV virus, Endy testified that treatment with the proper medication - coupled with proper nutrition, no abuse of alcohol and a stop to smoking - "can actually put the virus to sleep" and allow the person to live a very healthy normal life, Brunetti added.

In a worst-case scenario, someone with HIV who did not seek treatment and developed AIDS would have a mortality rate of 20 percent or higher, Endy testified. But even that situation would improve dramatically with treatment, the doctor added.

If the victim in Williams case were to stop taking medication, he could die within five years, according to Brunetti's rendition of Endy's testimony.

Given what Endy testified to about HIV and AIDS, there is insufficient evidence to support the allegation Williams' conduct created a grave risk of death to the victim, Brunetti concluded.

Additionally, the judge concluded there was insufficient evidence to support allegations Williams' conduct amounted to depraved indifference to human life given a lack of proof that it was "imminently dangerous" or created a grave risk of death.

Even a one-in-five risk of death for someone who did not seek treatment does not amount to a grave risk of death, Brunetti ruled.

As he did in his earlier decision, Brunetti noted legislators in New York could address the issue by joining more than 30 other states in passing legislation that specifically makes it a crime to create a risk of passing HIV to another.

Such legislation was introduced in Albany in January, the judge said.

Assistant District Attorney Geoffrey Ciereck, who responded to Brunetti's initial ruling by presenting the case to a new grand jury with additional medical evidence, was unavailable for immediate comment today on what the prosecution intends to do in the wake of the judge's latest decision.