The saliva of an HIV-infected man who bit a police officer doesn't constitute a deadly weapon or dangerous instrument under state law, New York's top court ruled Thursday.

In dismissing the aggravated assault conviction of David Plunkett, the Court of Appeals is sending the case back to a lower court for resentencing.

The 48-year-old Plunkett is serving a 10-year sentence at Sing Sing after pleading guilty to assault as well as aggravated assault on an officer after punching him and biting his finger in 2006 at a medical clinic in the Mohawk Valley village of Ilion.

The 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.