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HIV-Positive Man's Saliva Not a "Deadly Weapon," New York's Highest Court Rules

June 8, 2012

The aggravated assault conviction of an HIV-positive man was overturned unanimously by the New York Court of Appeals on June 7, after the court found that the man's saliva could not legally be considered a deadly weapon or dangerous instrument. David Plunkett was serving a 10-year sentence for punching and biting a police officer.

The incident occurred in 2006 when Plunkett was causing a disturbance as a patient at an Ilion clinic. Plunkett reportedly had a history of medical illness and assaulted one of the responding officers.

In New York, in order for assault to become aggravated assault (which carries a greater penalty), the use of a deadly weapon or dangerous instrument is required. The original judge considered HIV-positive saliva a deadly weapon, making biting an aggravated assault. Plunkett pleaded guilty to both assault and aggravated assault.

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Reader Comments:

Comment by: Mesa AZ HIV+ Person (Mesa, AZ) Thu., Nov. 1, 2012 at 11:08 pm EDT
While out shopping my friend turned pale, started to perspire profusely etc. I took him to the NexCare Urgent Care on Baseline Rd in Gilbert/Mesa, AZ and when we walked in were told they were closed. I didnt know what else to do, so after leaving momentarily and seeing him vomiting in the parking lot, I decided to go back in, play "bad cop" and insist they triage him, (which after my shaming them loudly etc. they finally did. Of course, 2 Mesa, AZ PD roll up and after I gave my side and the officer went in and talked to the NexCare people, I WAS ARRESTED FOR AGG. ASSAULT ON A HEALTHCARE PROVIDER(which the County Prosecutor never did pursue thank God)because one of the women in the NexCare told the cop AS I WAS YELLING AT STAFF TO TRIAGE MY FRIEND SHE WAS HIT WITH SOME OF MY SALIVA!!- The cop basically arrested me for being HIV+.
Ironically, when I called Lambda Legal about my case, I was told it was not precedent setting and basically..."oh well" good luck to you.
So THANKS ALOT THERE LAMBDA! I know I have a case to sue the cop and Mesa PD under the ADA etc but HA! try and find someone to represent me. To this day it sticks in my craw that both the cop AND LAMBDA discriminated against me because I am HIV+
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