People v. Plunkett, 971 N.E.2d 363 (N.Y. 2012)

This decision from the New York Court of Appeals vacated the conviction for aggravated assault of David Plunkett, and remanded his case for resentencing. Plunkett is an HIV-positive man sentenced to 10 years in prison for aggravated assault after biting a police officer. His saliva was considered to be the dangerous instrument for the purposed of the "aggravated" portion of the charge. The court vacated the conviction on the basis that his saliva, or any body fluid or part, are never "dangerous instruments" or a basis for charging someone with aggravated assault under New York law.

A significant portion of the decision related to the procedural issue of whether Plunkett's plea agreement barred this appeal. Most plea agreements cannot preserve an issue for appeal, and the court affirms this, saying "a guilty plea... 'generally marks the end of a criminal case, not a gateway to further litigation.'" However, in this circumstance the court feels that the right to appeal was properly preserved because Plunkett is not arguing about a matter of fact, but instead whether the facts of his case even can be applied to the law that he was charged under. In other words, he is not challenging whether he bit the officer, but rather whether his spit, as an HIV-positive person, could function as a dangerous instrument under the aggravated assault statute.

In the People v. Owusu decision in 1999, the NY Court of Appeals ruled that a person's teeth cannot be characterized as a dangerous weapon, or "instruments" under the terms of the law, as an element of an assault charge. The county Plunkett was tried in attempted to get around this by stating that in fact it was the defendant's saliva, not his teeth, that were "readily capable of causing death or other serious physical injury."

In this ruling, the Court "sought not simply to reach a textually and historically correct understanding of what the Legislature meant" the law to include, but also to avoid the injustices that "would result if criminal liability varied with the corporeal attributes of assailants and their victims." The interpretation that the court rejects would have made an individual's health, disability or even physical characteristics relevant to a determination of the ability to do harm, resulting in a "sliding scale of criminal liability."

The Court said that it's opinion does nothing to prevent punishment of an individual based on "the harm actually inflicted."