New York June 28, 2012 - Following the decision by the New York Court of Appeals earlier this month that vacated his conviction for aggravated assault on the basis that his saliva was not a "dangerous instrument," David Plunkett was resentenced today. His original 10-year sentence was dismissed, while the lower five-year concurrent sentences remained. His period of post-release supervision was reduced from five years to three. Because Plunkett has served over five years in prison already, he is due to be released within the next few days.
His attorney, Audrey Baron Dunning, said she "appreciates all the support from the HIV advocacy community throughout the appeals. It took a long time, but justice prevailed today." Baron Dunning was supported by an amicus brief submitted by the National Alliance of State and Territorial AIDS Directors, The Center for HIV Law and Policy, Lambda Legal, and others, by advocates who attended the court proceedings today, and by additional research by attorneys at White & Case.
Plunkett, who is HIV-positive, was sentenced in 2007 to 10 years in prison for felony aggravated assault after biting a police officer. His saliva was considered to be the dangerous instrument for the purpose 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" for the purpose of charging someone with aggravated assault under New York law. In the ruling earlier this month, the court sought 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 rejected 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."