The saliva of an HIV-infected man who bit a police officer doesn't constitute a deadly weapon or dangerous instrument under state law, New York's top court ruled Thursday.
In dismissing the aggravated assault conviction of David Plunkett, the Court of Appeals is sending the case back to a lower court for resentencing.
The 48-year-old Plunkett is serving a 10-year sentence at Sing Sing after pleading guilty to assault as well as aggravated assault on an officer after punching him and biting his finger in 2006 at a medical clinic in the Mohawk Valley village of Ilion.
The court unanimously said saliva should be treated the same as teeth, which it concluded in 1999 don't qualify as dangerous instruments because body parts come with the defendant and cannot heighten their criminal liability beyond the victim's injury.
"Because defendant's saliva too `came with him' _ indeed with his teeth _ its utility for penal enhancement may not be treated differently," Chief Judge Jonathan Lippman wrote. The six other judges concurred.
The officer whose skin was broken by the bite didn't become HIV-infected, though he took antiviral drugs for months afterward, Herkimer County Assistant District Attorney Jeffrey Carpenter said. Plunkett also urinated, defecated and bled during the struggle with two officers, and the court's ruling in effect applies not just to all body parts but also to all bodily fluids, he said.
"I think the decision will place not only the general public but certainly our first responders _ be it police, firefighters, EMTs or paramedics _ in grave danger in the future," Carpenter said. He planned to contact the state district attorneys association and lawmakers to try to get the penal law changed, he said.
The Lambda Legal Defense and Education Fund told the court in support of Plunkett that people with HIV shouldn't face extra criminal sanctions or enhanced penalties because they have HIV.
"I'm thrilled for my client, and I'm thrilled for everyone who's similarly situated," Plunkett's attorney, Audrey Dunning, said. "I believe it's a just and fair decision. It's in line with prevailing science."
According to the federal Centers for Disease Control, HIV transmissions from bites are "very rare," though medical literature suggests in specific circumstances, with blood-to-blood transmission, it has happened. "There are numerous reports of bites that did not result in HIV infection," the agency said.