In this case, defendant knowingly had unprotected anal sex with the victim despite being aware of his own HIV-positive status. During this encounter, the victim had asked if it was safe for them to engage in unprotected sex, and defendant assured him that it was. The victim thereafter contracted HIV. Defendant was charged by a grand jury with one count of first-degree reckless endangerment and one count of third-degree assault. The Supreme Court reduced the count of first-degree reckless endangerment to second-degree reckless endangerment, and the Appellate Division affirmed, concluding that the grand jury evidence did not make out a prima facie case that defendant acted with depraved indifference toward the victim. The judgment is affirmed, where 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.