In June 2013 the New York State Court of Appeals held that the saliva of a defendant afflicted with the Human Immunodeficiency Virus ("HIV”) does not constitute a dangerous instrument so as to support a conviction for aggravated assault. Despite this holding, the question remains whether the administration of HIV in an out-of-body form to another individual qualifies for dangerous instrument treatment so as to subject greater criminal liability under the New York State Penal Law (“Penal Law”). Another question remains – should New York punish those who knowingly transmit HIV to another individual? If so, should the punishment be charged through the Penal Law or through other state legislation? If this legislation does not exist, what should New York consider when drafting legislation?

Part I of this Article provides an overview of HIV and how it can be transmitted to an individual. Part II analyzes the Penal Law’s current provisions on dangerous instruments and penalties imposed by these provisions. Part III discusses New York case law on dangerous instruments. Part IV evaluates whether administering HIV in an out-of-body form qualifies for dangerous instrument treatment under the Penal Law and New York case law standards. Part V provides an overview of relevant case law on the question of whether a hypodermic needle constitutes a deadly weapon rather than a dangerous instrument. Part VI discusses statutory punishment of defendants who knowingly transmit HIV to another individual. Part VII analyzes factors that New York should consider when drafting specific criminal law provisions that target the knowing transmission of HIV. Part VIII is a brief conclusion of the article.