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NYS State High Court Says HIV-Infected Saliva Not a “Deadly Weapon”

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The New York Court of Appeals, the state’s highest bench, ruled unanimously on June 7 that an HIV-infected man who bit a police officer on the finger while being arrested could not be charged with aggravated assault since that crime requires the use of a “deadly weapon” or a “dangerous instrument.”

Neither teeth nor saliva are considered to be a weapon or instrument, regardless of the individual’s HIV status, the court held.

The ruling, announced in an opinion by Chief Judge Jonathan Lippman, introduces a sane precedent on an issue where too many courts have failed to apply common sense. In both state and federal courts, there have been many decisions over the past three decades imposing draconian prison sentences on HIV-infected individuals on the basis that their misconduct exposed others –– usually police or corrections officers –– to a tiny theoretical risk of HIV transmission through biting or spitting.

In some of those cases, as in this one, there was evidence that the defendant had a history of mental illness or suffered compromised judgment due to complications from HIV infection or medications.

The court’s opinion does not mention whether the police officer suffered any medical complications as a result of being bitten, but clearly implies that serious charges could result from intentional transmission of the HIV virus.

David Plunkett, who has “a long history of psychiatric illness,” was engaging in “bizarre behavior” and openly displaying marijuana in the reception area of his physician’s office. The police were contacted, and Plunkett bit the police officer during his arrest.

A Herkimer County grand jury voted to indict him on several charges, including “aggravated assault on a police officer.” An individual is guilty of this charge when, “with intent to cause serious physical injury to a person whom he knows or reasonably should know to be a police officer or a peace officer engaged in the course of performing his official duties, he causes such injury by means of a deadly weapon or dangerous instrument.”

In the indictment, Plunkett’s teeth were identified as the “dangerous instrument” used. When Plunkett’s attorney received the indictment, she sought dismissal of the aggravated assault charge, citing a prior New York case holding that teeth could not be considered “dangerous instruments” within the meaning of the law. A county court judge –– agreeing that an aggravated assault charge based on the use of teeth would have to be dismissed under this precedent –– responded that in this case the “dangerous instrument” was saliva, which the judge characterized as “infected with the AIDS virus” and therefore “readily capable of causing death or other serious physical injury.”

As part of the plea bargain subsequently reached on three counts, the trial judge informed Plunkett he could appeal the court’s ruling about saliva as a “dangerous instrument,” but the Appellate Division held that his guilty plea waived the right to appeal. The Court of Appeals disagreed, finding no waiver of the right to appeal a question that went directly to the validity of the indictment, and proceeded to the merits of the appeal.

Lippman noted that the trial judge concluded that saliva could be a “dangerous instrument” under the law because it is a “substance.” However, applying the same precedent that precluded teeth from being considered a “dangerous instrument,” he wrote that “a part of one’s body is not encompassed by the terms ‘article’ or ‘substance’ as used in the statute.” Neither teeth nor saliva could be considered an instrument for purposes of Plunkett’s prosecution.

Since the high court held that saliva was not an “instrument” within the meaning of the law, it concluded it was unnecessary for it to rule on the question of “whether saliva containing the HIV virus is in fact ‘readily capable of causing death or other serious physical injury.’”

The trial court, which erred in not dismissing the aggravated assault charge, should not have ruled on this factual issue, Lippman wrote.

Since neither Plunkett’s teeth nor his saliva were separate instruments in the commission of his crime, they “could not themselves qualify as a predicate to heighten his criminal liability beyond that justified by his victim's injury” –– a statement that makes plain that the police officer, contrary to the trial judge’s concern, did not suffer HIV infection as a result of the bite. At the same time, in linking the injury suffered to the defendant’s criminal liability, Lippman suggests he might find serious culpability in at least some situations where defendants infect others with the virus.

Plunkett will be resentenced on the other counts to which he pled guilty, and his plea on the aggravated assault charge must be vacated and the indictment dismissed.

The broader implication of this case is that prosecutors should not present an aggravated assault charge to a grand jury based on a theory of exposure to the teeth or saliva of a person infected with HIV.

Updated 5:17 pm, July 20, 2018
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