By Dan Wiessner
ALBANY, New York (Reuters) - A gay-rights group is urging New York state's high court to overturn the conviction of an HIV-positive man whose saliva was found to be a "dangerous instrument" in a biting case.
David Plunkett was sentenced in 2007 to 10 years in prison for aggravated assault, a felony that requires the use of a "dangerous instrument."
Plunkett argued unsuccessfully the charge could not be sustained because HIV cannot be transmitted through saliva. The Court of Appeals, New York's top court, will hear Plunkett's case on Thursday.
Lambda Legal, a national group that advocates for gays and lesbians and people with HIV, argued in a court brief filed this week that upholding Plunkett's conviction would further stigmatize people living with HIV and AIDS.
"Clearly, the trial court here erroneously believed that HIV could be transmitted by saliva," the Lambda Legal brief reads.
In 2006, the staff at a medical clinic in Ilion, about 70 miles east of Syracuse, called police to complain that Plunkett was causing a disturbance. Police said he 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 dangerous instrument, his saliva could.
Plunkett pleaded guilty and was given a 10-year prison sentence. In 2010, an appeals court found that by pleading guilty, Plunkett had forfeited his right to challenge any trial court error.
Plunkett and Lambda Legal argue that under New York law, only substances that are "readily capable of causing death or other serious physical injury" can be considered dangerous instruments.
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."
Plunkett's attorney, Audrey Baron Dunning, argued in an appellate brief that upholding Plunkett's conviction could "open the door for enhanced prosecution of persons with many forms of illness, contagious disease or condition."
The Herkimer County District Attorney's office did not return a call seeking comment.
(Editing by Todd Eastham)