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Case involving a man who bit a police officer and whose saliva was ruled a “dangerous instrument” because he has HIV.


David Plunkett, who has HIV, was charged with crimes based on an altercation with police officers in which he bit one of the officers. Plunkett is appealing the criminal court’s refusal to dismiss the count of aggravated assault upon a police officer after the judge ruled that his “saliva, infected with the AIDS virus, is the substance that is a dangerous instrument.” Lambda Legal filed an amicus brief in support of Plunkett, focusing on the medical bases for concluding that the saliva of a person living with HIV does not constitute a “dangerous instrument” under New York Penal Law. The amicus brief was filed on behalf of American Academy of HIV Medicine, the Association of Nurses in AIDS Care, the HIV Medicine Association, the Center for HIV Law and Policy and Lambda Legal.

    • June 2010 Lambda Legal files amicus brief.
    • October 2010 New York Supreme Court Appellate Division affirmed lower court’s conviction on the grounds that Plunkett’s guilty plea forfeited his asserted contentions of error in the trial court.
    • March 2011 New York Court of Appeals grants review.
    • April 2012 Lambda Legal files amicus brief in Court of Appeals.
    • June 2012 Court of Appeals dismisses aggravated assault conviction and remits the case back to Herkimer County Court for resentencing.