ALBANY, N.Y., June 7 An HIV-positive man who
admitted to biting a police officer attempting to arrest him had
his aggravated assault conviction overturned on Thursday by New
York's top court, which ruled the man's saliva did not qualify
as a deadly weapon.
The Court of Appeals, in throwing out the conviction of
David Plunkett, ruled that body parts, saliva or anything that
"comes with" a person cannot be considered deadly weapons under
state law. In New York, aggravated assault requires the use of a
"deadly weapon or dangerous instrument."
In 2006 the staff at a medical clinic in Ilion, about 70
miles east of Syracuse, called police to complain that Plunkett,
a patient at the clinic, was causing a disturbance. Police said
Plunkett, who had a history of mental illness, punched and bit
one of the responding officers, according to court documents.
Herkimer County Court Judge Patrick Kirk in 2007 denied
Plunkett's motion to dismiss the aggravated-assault charge,
ruling that while Plunkett's teeth could not be considered a
deadly weapon, his saliva could.
Plunkett pleaded guilty and was sentenced to 10 years in
prison. In 2010, the Appellate Division, Fourth Department,
found that by pleading guilty, Plunkett had forfeited his right
The Court of Appeals on Thursday disagreed, finding that
Plunkett could not have been guilty of aggravated assault
because he did not possess a deadly weapon.
"A defendant can admit facts, but cannot by his or her
admission mint an offense for which the law does not already
provide," Chief Judge Jonathan Lippman wrote in a unanimous
Plunkett argued on appeal that under state law, only
substances that are "readily capable of causing death or other
serious physical injury" can be considered deadly weapons.
The court on Thursday declined to weigh in on whether HIV
can be spread through biting.
A number of studies have found saliva does not contain
sufficient concentrations of HIV to transmit the virus to other
people. According to the Centers for Disease Control and
Prevention, "contact with saliva alone has never been shown to
result in transmission of HIV."
Scott Schoettes, the HIV Project director for national
gay-rights group Lambda Legal, said Thursday's ruling is the
first in the country to state explicitly that no body part or
fluid can be considered a deadly weapon.
"It's an important step forward" for HIV-positive people,
said Schoettes, who wrote a brief on behalf of Plunkett. A
contrary ruling, he added, would "criminalize HIV."
Herkimer County Acting District Attorney Jeffrey Carpenter
said that Plunkett had also attempted to defecate, urinate and
bleed on the officers and "taunted them with the fact that he
"No one was seeking to punish (Plunkett) because he has
HIV," Carpenter said, "but because he intentionally tried to
infect another human being with that disease."
He said he was concerned that Thursday's decision could
endanger police, emergency medical workers and medical
professionals, and that he would push for legislation that would
make it a crime to intentionally spread a communicable disease.
Plunkett's attorney, Audrey Baron Dunning, denied that her
client had tried to infect the officers and said the ruling "is
in line with the medical and scientific communities."
(Reporting by Dan Wiessner; Editing by Eric Walsh)