Adjournment in Contemplation of Dismissal (ACD)
In certain criminal cases in New York, a prosecutor may offer, or your defense attorney can apply for something called an Adjournment in Contemplation of Dismissal (also known as an “ACD” or “ACOD”). If the judge approves and both parties agree to this motion, then the alleged offender’s case is adjourned or postponed until the charges are ultimately dismissed. The dismissal depends on the alleged offender completing certain conditions.
In many cases, the ACD represents one of the best possible outcomes because the alleged offender is not convicted nor does he or she enter any plea regarding the alleged crime which keeps the criminal records clean. However, there can be consequences to accepting an ACD for certain immigrants or people in certain professions, and it is wise to consult an experienced criminal defense attorney who can determine whether an ACD is truly in your best interests.
Attorney for ACD in Manhattan
If you have been arrested for any criminal offense in New York and a prosecutor is offering you an ACD, make sure that you have legal representation. Greco Neyland, PC helps clients in Brooklyn and Manhattan who are facing misdemeanor and felony charges.
Jeff Greco and Dustan Neyland understand the situations in which an ACD is a favorable resolution, but they are also willing to fight the charges when an ACD is not the best option. If you have a good defense to the charges, it is better to win the case outright by getting the prosecutor to drop the judges or the judge to dismiss the case. In some cases, it is better to go to trial for a “not guilty” verdict.
Your attorney may be able to file a motion to dismiss the charges outright if insufficient evidence exist. You can receive a free, confidential consultation with us to have our firm review your case by calling (212) 951-1300 right now.
New York Adjournment in Contemplation of Dismissal Overview
Under New York Criminal Procedure Law (CPL) § 170.55, an ACD is “an adjournment of the action without date ordered with a view to ultimate dismissal of the accusatory instrument in furtherance of justice.”
In most cases, the length of time that a case is postponed is six months, although the following cases can be adjourned for as much as one year:
- Family Offense Matters — New York Criminal Procedure Law § 530.11
- Cases Involving Marihuana — New York Criminal Procedure Law § 170.56
During the time that a criminal case is adjourned, an alleged offender will need to satisfy certain conditions in order to have his or her case dismissed when the term of postponement has ended. In several cases, the basic ACD simply requires that the alleged offender commit no other violations of law and just stay out of trouble.
However, there may be cases in which the following qualifications need to be met:
- Class Attendance — An alleged offender may be required to attend some sort of class relating to the alleged offense, such as an anti-shoplifting seminar or a drug or alcohol program.
- Community Service — This is unpaid work that this performed for the benefit of the community.
- Restitution — The court may require an alleged offender to pay an alleged victim or complaining witness restitution for costs such as medical bills or property damage in order to have a criminal case dismissed.
It is important to note that if you are offered an ACD that requires you to pay fines, the agreement is not really an ACD. A punishment such as a fine cannot be imposed upon a person who has not pleaded guilty or convicted of a criminal offense, and these types of misleading offers exemplify why you will want to be represented by a knowledgeable criminal defense lawyer.
For a great deal of alleged offenders, the benefits of an ACD far outweigh any possible drawbacks. Some of the reasons that an ACD could be a favorable resolution to your case include:
- No More Court Appearances — You will usually not be required to go back to court when you accept an ACD. When the period of postponement has ended, your case can be dismissed and sealed without an appearance by you so long as the prosecutor does not make any motion to restore it. However, you may have to return to the court to provide proof that you paid restitution, attended classes, or completed community service if required to do so.
- Your Case is Dismissed — When the case is dismissed, it is sealed and accessible by only a very limited group of people. Furthermore, the prosecution cannot reopen the case.
- No Criminal Record — You are neither admitting guilt, nor are you pleading no contest. Because you do not enter any plea, this means that your criminal record is essentially restored to what it was before your arrest.
- You Can Still File Certain Lawsuits — You may still be able to sue the police department for false arrest, false imprisonment, or excessive force.
While an ACD is often seen as one of the best possible outcomes to a criminal case, this is not always true for certain people. You should keep in mind that some consequences of accepting an ACD may include:
- Charges Not Immediately Dismissed — Whereas charges are completely dismissed as soon as someone is acquitted or found not guilty at trial, a condition of the ACD is that your charges will not be dismissed until the time that your case has been postponed has lapsed. This means it will often take between six months and one year for the charges to be dismissed.
- Effect on Future Lawsuits — An ACD is not considered to be a “termination of criminal action in favor of the accused,” so you will not be able to file a lawsuit alleging malicious prosecution. Additionally, an ACD with certain conditions could also have ramifications later on if a person claiming that you injured them files a lawsuit against you.
- Employment Consequences — Because your case is not dismissed until the period of adjournment has concluded, this means that your arrest will still be on your criminal record and viewable by any current or prospective employers. An ACD can also have effects on professional licensing, and certain employers can still be allowed to ask whether you accepted an ACD even after the case has been dismissed.
- Immigration — For alleged offenders who are in the country on temporary immigration visas, any arrest has the potential to lead to deportation. An ACD can potentially create additional difficulties.
Collaterial Consequences of the ACD
In New York, the ACD program works to nullify the arrest after the case is dimissed. that is ultimately dismissed, Under NYCPL § 170.55 (8), the dismissal returns the defendant “to the status he occupied before arrest and prosecution.”
NYCPL § 160.60 provides that an ACD shall not “operate as a disqualification of any person from any occupation or profession.” See NYCPL § 160.60. Additionally, the New York Human Rights Law (“NYHRL”) makes it unlawful to discriminate against anyone on the basis of a termination of criminal proceedings favorable to that individual. In fact, NYHRL § 296(16) provides:
It shall be unlawful discriminatory practice unless specifically required or permitted by statute for any corporation to act upon, adversely to the individual involved, any arrest or criminal accusation of such individual not then pending, against the individual which was followed by a termination of that criminal action or proceeding in favor of such individual, as defined in subdivision two of section 160.50 of the Criminal Procedure Law.
Since an Adjournment in Contemplation of Dismissal (ACD) is a termination of criminal proceedings in favor of the accused, then NYCPL § 160.50 (2) would make it unlawful to discriminate on that basis. The only exception to this NYHRL rule is that a corporation is permitted by statute to consider a past ACD and discriminate on that basis during the hiring process.
One example of this exception can be found in the Federal Deposit Insurance Act (“FDIA”). Section 19 (a) of the FDIA explicitly prevents the hiring of “any person who has been convicted of any criminal offense involving dishonesty or a breach of trust or money laundering, or has agreed to enter into a pretrial diversion or similar program in connection with prosecution for such offense.” See 12 U.S.C. § 1829 (a) (1).
Does the ACD fit within the Section 19 definition of a “pretrial diversion or similar program?” The FDIC’s Section 19 Statement of Policy defines a “pretrial diversion or similar program,” as being “characterized by a suspension or eventual dismissal of charges or criminal prosecution upon agreement by the accused to treatment, rehabilitation, restitution, or other noncriminal or nonpunitive alternatives.” See 63 Fed. Reg. at 66, 184-85.
ACDs appear to be consistent with the FDIC’s definition of a covered program because an ACD is an agreement with the person accused. The agreement is involves a “suspension or eventual dismissal of charges or criminal prosecution.” Being accepted into the ACD program initially suspends the charges which are ultimately dismissed when and if the Defendant complies with certain conditions within the alloted time period. See NYCPL § 170.55 (2). During that time period the Defendant must complete certain special conditions and avoid getting into any trouble.
In an opinion letter dated May 13, 2009, FDIC officials found that an ACD falls within the meaning of Section 19 of the FDIA. The letter concluded that: “the granting of an ACD constitutes entry into a pretrial diversion or similar program within the meaning of Section 19.” This example shows that entering into the ACD program is not without consequence.
Call an experienced criminal defense attorney to discuss your options when faced with a criminal charge.
Disadvantages of ACD
According to the Nassau County District Attorney’s Office, the disadvantages of accepting an ACOD include:
- forfeiting your right to sue for malicious prosecution;
- forfeiting your right to sue for false arrest and/or false imprisonment;
- being unable to join the military during the adjournment period;
- prospective employers will have access to the court records of the ACOD during the adjournment period (As a practical matter, they may have such access even after the case is dismissed.)
- Police departments and other law enforcement agencies will know of the ACOD and you may have difficulty joining a police department or other law enforcement agency in the future;
- difficulty obtaining a gun permit in the future;
- if you are arrested in the future, after your present case is dismissed, your acceptance of the ACOD on this case may adversely affect your ability to get a favorable plea bargain offer on the future case;
- if you are an immigrant scheduled for a naturalization interview, the ACOD may cause a problem during the adjournment period;
- if you are a sheriff, police officer or peace officer, your weapons will continue to be secured during the adjournment period;
- if you are currently on parole, the underlying acts that led to your current arrest can still be used by the Parole Board to charge you with a parole violation.
Find a Lawyer for ACD in Manhattan and NYC
Before you accept any agreement like an ACD, you should be sure to contact a skilled New York criminal defense attorney. Jeff Greco and Dustan Neyland are both former prosecutors who will perform the most thorough investigation of the charges against you to make sure that you agree only to the best possible outcome to your case.
Greco Neyland, PC helps clients all over New York City who are facing all types of criminal charges. Call (212) 951-1300 today to schedule a free legal consultation that will let our firm review your case. Learn more about criminal procedural rules that might apply to your case. Let us help you understand all of your legal options.
This article was last updated on Tuesday, July 5, 2016.
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