Body Parts as Weapons in Aggravated Assault at Issue in People v. Plunkett

Those who suffer from infectious diseases shouldn’t be charged with aggravated circumstances in cases of assault, simply by virtue of their illness. teeth.jpg

Our Fort Lauderdale defense attorneys know this was the core issue in People v. Plunkett, which was decided recently in the New York State Court of Appeals.

While this case is out of New York, Florida criminal defense lawyers know aggravated assault charges are often complicated by what authorities claim as “aggravated.”

The facts of the case, as described by Chief Appellate Judge Lippman, are this:

The defendant was convicted in county court of aggravated assault on a peace officer, following his entering a plea of guilty. The evidence was purportedly based on testimony by the officer that he was bitten by the defendant on the finger as the officer tried to make an arrest. The defendant in this case is HIV positive. Additionally, he has an extensive history of psychiatric illness.

The officer in this case had initiated the arrest because the defendant had opened a bag of marijuana in the waiting room of his primary care doctor’s office.

Under normal circumstances, the bite that the officer sustained would garner a charge of assault on a peace officer. However, because the defendant was HIV-positive, he was charged with aggravated assault on a peace officer.

Prosecutors contended that the so-called “dangerous instruments” necessary to meet the statutory requirement for the threshold of aggravating circumstances were the defendant’s teeth, particularly by virtue of the fact that he was HIV-positive and HIV is known to cause AIDS, an autoimmune disease that has been known to cause severe illness and death, particularly if untreated.

However, the appellate court, in examining the defendant’s appeal, relied on the case law established in a case known as People v. Owusu. That case determined that a person’s teeth could not be defined as an “instrument” under the law. What’s more, that case held that no individual body part could be construed as a dangerous “instrument,” even if it was used to produce injury.

Now this was an issue the trial court wrestled with as well, although the judge in that case believed that because the defendant was afflicted with the AIDS virus, his saliva in and of itself was a substance capable of causing death or other serious injury. The teen, argued the prosecution, were merely a means to inject that dangerous substance into the police officer’s body.

The defendant ultimately pleaded guilty, but did not waive his right to an appeal.

The appellate court chose to decide the issue purely on the merits of whether that initial charge was appropriate. Although the lower court had held that the saliva itself was a dangerous substance, the appellate court ruled instead that the saliva was a part of one’s person, as defined by earlier case law.

In fact, the court ruled that if it were to deem certain parts of the body as weapons, simply based on their characteristics, it would be weighing cases in which a person’s height, weight and strength relevant to the alleged victim’s would be considered a factor for the severity of the crime. This would result, as they put it, in a sliding scale of criminality in which a larger person could be charged with a greater offense than a smaller person who committed the exact same act. This is a slippery legal slope, and the court rightly recognized it here.

If you are facing criminal charges in Broward or Palm Beach counties, contact the Law Offices of Leifert & Leifert, a Partnership of Former Prosecutors, for a free consultation to discuss your rights. Call 1.888.5.DEFEND.

Additional Resources:
People v Plunkett, Justia Dockets

More Blog Entries:
Broward Criminal Defense Watch: The Ethics of Prosecutors & Judges, April 30, 2012, Fort Lauderdale Criminal Defense Lawyers Blog

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