People v. Plunkett, 19 N.Y.3d 400 (2012)
A defendant’s guilty plea does not forfeit the right to appeal a conviction where the claim is that the defendant was not charged with an extant crime, particularly when the accusatory instrument alleges commission of a crime by use of a part of the defendant’s person as a dangerous instrument, as such a claim challenges the legal viability of the theory of prosecution itself.
Summary
Plunkett, HIV positive with a psychiatric history, bit a police officer during an arrest and was charged with aggravated assault using his teeth and saliva as dangerous instruments. The trial court, acknowledging that teeth could not be considered dangerous instruments, posited that Plunkett’s saliva could be, and allowed the charge to stand. Plunkett pled guilty, but reserved the right to appeal this ruling. The New York Court of Appeals held that Plunkett’s plea did not forfeit his right to appeal the legal question of whether his saliva could constitute a dangerous instrument, and further held that under People v. Owusu, body parts cannot be considered dangerous instruments.
Facts
Plunkett, known to be HIV positive and with a psychiatric history, was arrested after behaving erratically and possessing marijuana in his doctor’s office. During the arrest, Plunkett bit a police officer’s finger. The indictment charged Plunkett with aggravated assault on a police officer, alleging his teeth were the dangerous instrument. The People’s bill of particulars specified Plunkett’s teeth as the dangerous instrument, but the trial court later suggested that Plunkett’s saliva could also be considered a dangerous instrument.
Procedural History
The Herkimer County Grand Jury indicted Plunkett for aggravated assault, among other charges. Plunkett’s attorney moved to dismiss the aggravated assault count based on the Owusu decision, which held that body parts cannot be dangerous instruments. The County Court denied the motion, reasoning that Plunkett’s saliva, not his teeth, constituted the dangerous instrument. Plunkett pled guilty to several counts, reserving the right to appeal the dangerous instrument ruling. The Appellate Division affirmed the conviction, holding that the guilty plea forfeited Plunkett’s right to appeal. The Court of Appeals granted permission to appeal.
Issue(s)
1. Whether a guilty plea forfeits a defendant’s right to appeal a legal determination that a body part (saliva) can constitute a “dangerous instrument” for purposes of aggravated assault, where the defendant reserved the right to appeal that specific determination as part of the plea agreement?
2. Whether saliva can be considered a “dangerous instrument” under Penal Law § 10.00(13)?
Holding
1. No, because the claim is that the defendant was never charged with an extant crime and the claim challenges the legal viability of the theory of prosecution itself.
2. No, because body parts cannot be “dangerous instruments” under Penal Law § 10.00(13).
Court’s Reasoning
The Court of Appeals distinguished this case from cases where a guilty plea forfeits appellate claims. The Court emphasized that the challenge was not to the factual sufficiency of the evidence, but to the legal viability of the charge itself. A plea establishes facts, but cannot “mint an offense for which the law does not already provide.” The Court relied on People v. Lee, stating that forfeiture should not apply where an appellate claim is not inconsistent with what is properly established by the plea. The court stated, “[i]f the question reserved for appeal in this case were whether there was evidence to make out the crime of aggravated assault, the reservation would, under Thomas, be ineffective; the undisturbed plea would operate to forfeit the appellate claim.”
Regarding the “dangerous instrument” issue, the Court relied on People v. Owusu, stating that “a part of one’s body is not encompassed by the terms ‘article’ or ‘substance’ as used in the statute.” The Court reasoned that allowing body parts to be dangerous instruments would lead to a “sliding scale of criminal liability” based on the physical attributes of the assailant and victim. Because Plunkett’s saliva “came with him,” it could not be used to enhance criminal liability. The Court stressed this did not diminish the state’s power to punish the harm inflicted, but only limited its power to heighten liability based solely on corporeal attributes. The court explicitly stated “Owusu’s teeth came with him and thus could not themselves qualify as a predicate to heighten his criminal liability beyond that justified by his victim’s injury (id. at 405). Because defendant’s saliva too “came with him”— indeed, with his teeth—its utility for penal enhancement may not be treated differently.”