The attorney for an Ilion man said her client is now looking forward to the future following a resentencing of his conviction on Thursday.
“He’s very happy,” said Audrey Dunning during a telephone interview on Thursday on behalf of her client David Plunkett. “He’s waiting to be processed and he knows that freedom is in sight.”
On June 7, the Court of Appeals dismissed Plunkett’s aggravated assault conviction for biting a police officer in 2006 while being infected with the HIV virus. The aggravated assault charge was the top count of the indictment. He was sentenced to serve 10 years for the assault charge in 2007, and has been serving time in Sing Sing prison.
The appeals court unanimously said saliva should be treated the same as teeth, which it concluded in 1999 don’t qualify as dangerous instruments because body parts come with the defendant and cannot heighten their criminal liability beyond the victim’s injury.
Plunkett was resentenced at the Herkimer County Courthouse on Thursday. Dunning said Plunkett is still in custody of the Department of Corrections for processing as his time served is recalculated. She said the Department of Corrections will arrange for his release and his period of post release supervision.
“This is the end of the uncertainty of the future, as waiting through the appeals process has been very difficult for him,” said Dunning. “He was left wondering what tomorrow is going to bring. He can start looking forward to the rest of his life.”
Dunning also said, “He’s hoping to be able to help people similarly situated to him.”
The officer whose skin was broken by the bite didn’t become HIV-infected, though he took antiviral drugs for months afterward, Herkimer County Assistant District Attorney Jeffrey Carpenter said. Plunkett also urinated, defecated and bled during the struggle with two officers, and the court’s ruling in effect applies not just to all body parts but also to all bodily fluids, he said.
Members of ACT UP/NY — an HIV/AIDS advocacy group — traveled from New York City to be in Herkimer County on Thursday for the resentencing to show their support for Plunkett. Shirlene Cooper, a member and an HIV peer educator for Housing Works, said she was appalled to hear that Plunkett had been serving time for aggravated assault.
“There is not enough of the HIV virus in saliva that could kill a fly,” she said.
“There’s already been a serious miscarriage of justice based on fear, not on scientific evidence about how HIV is transmitted,” said Eric Sawyer, a founding member of ACT UP, on Thursday. He said Plunkett’s release would be the “first step forward in restoring justice and his dignity.”
The Associated Press contributed to this report.