AIDS Activists to Demand Freedom for HIV-Positive Prisoner Jailed on Bogus HIV Assault Charge

Who: Members of ACT UP/NY, Housing Works, QUEEROCRACY, and James Cook, retired attorney

What: Will hold a press conference and call for the release of David Plunkett, who was convicted on a bogus assault with a deadly weapon charge because he has HIV

Where: Old Herkimer County Courthouse, corner of Main and Court Street, Herkimer, NY

When: 11:20 am Thursday, June 28, 2012

Why: Before the New York Court of Appeals, David Plunkett successfully challenged his conviction for assault with a “dangerous instrument” based on his HIV status, and is scheduled for re-sentencing to rescind the punishment imposed as a result of this unlawful conviction.For reasons that are unclear, Herkimer County Assistant District Attorney Jeffrey Carpenter has requested a hearing on what should be merely an administrative procedure to release Mr. Plunkett, who has already served his time for the lesser crimes to which he pled guilty.

Members of ACT UP/NY, Housing Works, QUEEROCRACY, and local attorney James Cook are mobilizing at the courthouse to show support for Mr. Plunkett, an HIV-positive man unjustly charged and convicted of a crime unsupported by science or law.The aforementioned AIDS activists call upon Mr. Carpenter to comply with the mandate of New York’s highest court and to support Mr. Plunkett’s immediate release.

Activists are mobilizing against the misuse of deadly assault laws based on a person’s HIV-positive status, because such charges are motivated by bigotry and ignorance. “The Court of Appeals correctly rejected the conviction of David Plunkett because science long ago established that the risk of transmission of HIV by biting is so remote as to be virtually impossible,” said ACT UP/NY member Eric Sawyer. “It would be an outrage for this man to serve even one day more in prison for a crime he could not have committed based on the facts alleged.”

In September 2006, David Plunkett was arrested following an altercation with police during which he allegedly bit one of the police officers. Because he subsequently revealed to the officers that he has HIV, Plunkett was charged with aggravated assault upon a police officer, a felony premised on use of a “dangerous instrument.” Earlier this month, the New York Court of Appeals, the state’s highest judicial body, rejected that aggravated assault conviction because naturally-occurring substances present in bodies cannot be considered a “deadly instrument.”

Chief Justice Lippman wrote, “Because the defendant’s saliva too ‘came with him’ – indeed with his teeth, its utility for penal enhancement may not be treated differently [than a person’s teeth, which the Court previously held could not be considered a ‘dangerous instrument’ under New York law].” This overturned the conviction for the most serious charge against Plunkett, who has already served his time for lesser crimes and is presently serving a 10-year sentence for the aggravated assault conviction at the Ossining Prison in NY State.

According to James Cook, a retired Florida attorney, now a resident of Herkimer county, “The Acting District Attorney, Jeffrey Carpenter, is apparently continuing to seek punishment of David Plunkett by attempting to circumvent the Court of Appeals unanimous decision written by Chief Justice Lippman. The hearing was scheduled at the request of the Acting District Attorney which clearly demonstrates his intention to seek additional punishment against Mr. Plunkett, despite the Court’s clear directive.” Cook continued, “The Court of Appeals decision was issued on June 7, 2012. Yet, Mr. Plunkett continues to sit in state prison.   The Herkimer County Court and Acting District Attorney could not make themselves available for Plunkett’s re-sentencing hearing until June 28th at 1:00 pm.”

Image Component: By Doug Kerr from Upstate New York – Herkimer, New York, CC BY-SA 2.0

About ACT UP

Founded in 1987, ACT UP (AIDS Coalition to Unleash Power), is a diverse, non-partisan group of individuals united in anger and committed to direct action to end the AIDS crisis. ACT UP currently meets every Monday night at 7PM ET via Zoom. Notes: you will be asked to contribute your first & last name and email address to access online meetings, and KN-95 masks are required for ACT UP NY in person meetings/actions/gatherings. All individuals are welcome!