HIV-positive saliva not a "deadly weapon": NY court

ALBANY, New York (Reuters) - 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 to appeal.

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 decision.

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 had HIV."

"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)

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