ABCs of ACDs

            Misdemeanor and violation cases, such as shoplifting, assault, drugs, open alcohol containers, harassment, theft of services, trespass, etc., are often resolved via an ACD, which stands for “Adjournment in Contemplation of Dismissal” (called an “ACOD” in Nassau, Suffolk and maybe other counties). When the court grants an ACD, the case is adjourned for six months (one year if the case involves marijuana or a family offense) and then dismissed, without the defendant having to return to court – it is done automatically.

Felony cases can also be resolved via an ACD, but often involve a “re-pleader” in which the defendant pleads guilty to something (either a misdemeanor or a felony), with the understanding that if certain conditions are satisfied (community service, drug treatment, restitution, not being re-arrested), the defendant can return to court, withdraw the guilty plea and receive an ACD. Re-pleaders are really just a way to extend the length of the ACD because, by statute, an ACD can only last for six months (CPL 170.55 (2)) or one year (CPL 170.56 (2)). A re-pleader can last for any amount of time agreed upon by the parties and the court.

Two Types of ACDs – Non-Marijuana v. Marijuana

There are differences between “marijuana ACDs” (CPL 170.56) and all other ACDs (CPL 170.55). For example, a marijuana ACD may be granted “upon motion of the defendant” (CPL 170.56 (1)) – the consent of the district attorney’s office is not required. On the other hand, a non-marijuana ACD may be granted only “upon motion of the people or the defendant and with the consent of the other party.” (CPL 170.55 (1)).

Another difference is that with a non-marijuana ACD, the district attorney’s office has the right to make an application to the court to restore the case to the calendar “at any time not more than six months” (CPL 170.55 (2)) (one year if the case is a family offense). There does not appear to be any statutory mechanism to shorten this time period, although the district attorney’s office could probably consent and waive the time period.

With a marijuana ACD, the statute specifically provides that “the court may modify the conditions or extend or reduce the term of the adjournment, except that the total period of adjournment shall not exceed twelve months.” (CPL 170.56 (2)). Therefore, marijuana ACDs can be as short as one day and judges will often agree to shorten the time period, if the defendant presents a compelling reason to do so.

ACDs v. Acquittal or Dismissal

ACDs are typically an excellent resolution to a case because the case is ultimately dismissed and the record sealed. To use a baseball analogy, “a walk is as good as a hit” and an ACD is nearly the equivalent of an outright dismissal or acquittal after trial, but there are some differences.

One difference is that an ACD is not deemed a favorable termination for purposes of malicious prosecution or false arrest claims, under 42 U.S.C. 1983. See Green v. Mattingly, 585 F.3d 97, 103-04 (2d Cir. 2009). In other words, if you accept an ACD, you probably can’t sue the police or prosecution for false arrest or malicious prosecution.

A second difference is that at least one federal court has held that an ACD is the equivalent of a “pre-trial diversion program” and may be relied upon to disqualify a person from working at an FDIC-insured institution, e.g., a bank. In Smith v. Bank of America Corp., 865 F.Supp.2d 298 (E.D.N.Y. 2012), the United States District Court for the Eastern District of New York held that an ACD satisfied the definition of a “pretrial diversion or similar program” under 12 U.S.C. 1829 (a)(1)(A)(i). Under that section, 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 the prosecution for such offense, may not . . . become . . . an institution-affiliated party with respect to any insured depository institution.”

According to Smith, a defendant who received an ACD for any criminal offense involving 1) dishonesty, 2) breach of trust, or 3) money laundering, may not become “an institution-affiliated party” (i.e., an employee) of “any insured depository institution” (i.e., any FDIC-insured bank). In Smith, the defendant had received an ACD for shoplifting -- a criminal offense involving “dishonesty” -- and could therefore not be employed by Bank of America. The district court implied that the defendant’s lawyer had been constitutionally ineffective in failing to advise her of this potential consequence of accepting an ACD or her right to apply for a federal waiver (calling these “serious omissions by counsel”) and citing Padilla v. Kentucky, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), the Supreme Court case that held counsel was constitutionally ineffective for failing to inform defendant of automatic deportation that would follow guilty plea.

Can A Defendant Deny Having Been Arrested If The Case Is Dismissed? 

A question that usually comes up when a defendant is considering accepting an ACD is whether the defendant must disclose the fact that they were arrested if asked by employers or on other applications. The answer is: it depends.

It is important to understand the statutory framework in New York that applies to ACDs.

Dismissed Criminal Cases Are A “Nullity” Under New York Law

In general, all dismissed cases are deemed a “nullity” under New York law and a person is entitled to be restored to the status he occupied before his arrest and prosecution. There are three statutory sections in the Criminal Procedure Law that explain the legal effect of an ACD – CPL 160.60 (which addresses all dismissals, including all ACDs), 170.55 (8) (which addresses regular ACDs), and 170.56 (4) (which addresses marijuana ACDs).

            Criminal Procedure Law 170.56 (4) (marijuana ACDs) provides that “Upon the granting of an order pursuant to subdivision three, the arrest and prosecution shall be deemed a nullity and the defendant shall be restored, in contemplation of law, to the status he occupied before his arrest and prosecution.”

            Criminal Procedure Law 170.55 (8) (regular ACDs) provides that “The granting of an adjournment in contemplation of dismissal shall not be deemed to be a conviction or an admission of guilt. No person shall suffer any disability or forfeiture as a result of such an order. Upon the dismissal of the accusatory instrument pursuant to this section, the arrest and prosecution shall be deemed a nullity and the defendant shall be restored, in contemplation of law, to the status he occupied before his arrest and prosecution.”

            Criminal Procedure Law 160.60 (all dismissals) provides that “Upon the termination of a criminal action or proceeding against a person in favor of such person, as defined in subdivision two of section 160.50 of this chapter, the arrest and prosecution shall be deemed a nullity and the accused shall be restored, in contemplation of law, to the status he occupied before the arrest and prosecution. The arrest or prosecution shall not operate as a disqualification of any person so accused to pursue or engage in any lawful activity, occupation, profession, or calling. Except where specifically required or permitted by statute or upon specific authorization of a superior court, no such person shall be required to divulge information pertaining to the arrest or prosecution.”

            CPL 160.60 applies to cases that have been terminated in favor of a person against whom there was a criminal action or proceeding. According to CPL 160.50 (3)(b), a criminal action or proceeding against a person shall be considered terminated in favor of such person where an order has been entered to dismiss the entire accusatory instrument against such person pursuant to section 170.55 (regular ACDs) or 170.56 (marijuana ACDs).

As New York’s highest court, the New York Court of Appeals, has recognized:

the Legislature’s objective in enacting CPL 160.50 and the related statutes concerning the rights of exonerated accuseds was to ensure that the protections provided be “consistent with the presumption of innocence, which simply means that no individual should suffer adverse consequences merely on the basis of an accusation, unless the charges were ultimately sustained in a court of law” (Governor’s Approval Mem, 1976 McKinney’s Session Laws of NY, at 2451). Indeed, the over-all scheme of the enactments demonstrates that the legislative objective was to remove any “stigma” flowing from an accusation of criminal conduct terminated in favor of the accused, thereby affording protection (i.e., the presumption of innocence) to such accused in the pursuit of employment, education, professional licensing and insurance opportunities (citation omitted).

People v. Patterson, 78 N.Y.2d 711, 716 (N.Y. 1991).

The companion statute to CPL 160.50, New York Executive Law § 296 (16), provides additional protection:

It shall be an unlawful discriminatory practice, unless specifically required or permitted by statute, for any person, agency, bureau, corporation or association, including the state and any political subdivision thereof, to make any inquiry about, whether in any form of application or otherwise, or to act upon adversely to the individual involved, any arrest or criminal accusation of such individual not then pending against that 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, in connection with the licensing, employment or providing of credit or insurance to such individual; provided, however, that the provisions hereof shall not apply to the licensing activities of governmental bodies in relation to the regulation of guns, firearms and other deadly weapons or in relation to an application for employment as a police officer or peace officer as those terms are defined in subdivisions thirty-three and thirty-four of section 1.20 of the criminal procedure law.

There Are Exceptions to the “Nullity” Rule

There are several important exceptions that apply to ACDs in which the existence of the underlying prosecution may be disclosed. First, CPL 160.60 states that “Except where specifically required or permitted by statute or upon specific authorization of a superior court, no such person shall be required to divulge information pertaining to the arrest or prosecution.” This exception was relied upon in Smith v. Bank of America Corp., 865 F.Supp.2d 298 (E.D.N.Y. 2012) (discussed above) to conclude that 12 U.S.C. 1829 (a)(1)(A)(i) created the type of statutory exception contemplated by CPL 160.60.

Second, Executive Law 296 (16) provides “that the provisions hereof shall not apply to the licensing activities of governmental bodies in relation to the regulation of guns, firearms and other deadly weapons or in relation to an application for employment as a police officer or peace officer.”

Third, CPL 160.50 (1)(d) lists circumstances under which sealed records can be made available to:

1. the defendant or the defendant’s agent,
2. a prosecutor if the defendant moves for a marijuana ACD under 170.56,
3. law enforcement upon a showing that “justice requires” disclosure,
4. a state or local agency that issues gun licenses,
5. the New York State Department of Corrections if the defendant was on parole,
6. a prospective employer of a police officer/peace officer, if the defendant applies for a job,
7. any Probation Department responsible for the defendant’s supervision.

Judicial decisions in New York offer further guidance. In In the Matter of Wilson v. NYPD License Division, 2012 N.Y. Misc. LEXIS 4008; 2012 NY Slip Op 32191U (S.Ct. NY County 2012), the New York State Supreme Court held that an applicant for a handgun license correctly and truthfully answered “no” to the question on the licensing application asking “Have you ever been arrested?,” despite the fact that the handgun license application required the applicant to provide information about prior criminal cases “even if: the case was dismissed, the record sealed or the case nullified by operation of law.” The Court concluded that the applicant was entitled to deny her arrest, because it was a nullity, and she was restored to her status before the arrest, as if it never occurred. In the Matter of Wilson, 2012 N.Y. Misc. LEXIS 4008 *6. In the Court’s view, “[the NYPD] may not create a duty to disclose a fact that never occurred.” The Court also held that the NYPD could not consider the applicant’s arrest and/or failure to disclose the arrest as grounds to deny her handgun license application. Id. at *11-12.

In March 2014, however, the Appellate Division, First Department reversed and held that:

An applicant for a handgun license who was previously arrested is required to submit a certificate of disposition showing the offense and disposition of charges, as well as a detailed statement describing the circumstances of the arrest (see Rules of the City of NY Police Dept [RCNY] § 5-05(6)). Although petitioner’s arrest was a nullity after the charges against her were dismissed (see N.Y. Crim. Proc. Law § 160.60), she was required to disclose it on the application. Her denial that she was arrested constitutes a false statement which is a sufficient ground for the denial of the application (see Penal Law § 400.00; DeMeo v Bratton, 237 AD2d 111, 112, 655 N.Y.S.2d 1 (1st Dept 1997)).

In re Wilson v. NYPD License Division, 115 A.D.3d 552, 982, N.Y.S.2d 112, 113 (1st Dep't 2014).

The First Department cited to Title 38 Rules of the City of NY Police Dept [RCNY] § 5-05 (b)(6), which states:

(6) Arrest information. If the applicant was ever arrested for any reason s/he shall submit a Certificate of Disposition showing the offense and disposition of the charges. Also, the applicant shall submit a detailed statement describing the circumstances surrounding each arrest. This statement shall be affirmed in writing. The applicant shall do this even if the case was dismissed, the record sealed or the case nullified by operation of law. The New York State Division of Criminal Justice Services shall report to the Police Department every instance involving the arrest of an applicant. The applicant shall not rely on anyone’s representation that s/he need not list a previous arrest.

In addition, licensing for a firearm requires “an investigation and finding that all statements in a proper application for a license are true.” New York Penal Law § 400.00 (1).

Although not explicitly stated by the First Department, 38 RCNY § 5-05 (b)(6) creates the type of statutory exception contemplated by CPL 160.60. In fact, there is a double exception when it comes to firearms, because Executive Law 296 (16) provides “that the provisions hereof shall not apply to the licensing activities of governmental bodies in relation to the regulation of guns, firearms and other deadly weapons or in relation to an application for employment as a police officer or peace officer.” Therefore, the First Department could have based its holding on this statutory provision as well.

If no specific statutory exception exists, then it appears that a person can legally deny being arrested if the case was dismissed. In People v. Ellis, 184 A.D.2d 307, 584 N.Y.S.2d 569 (1^st Dep’t 1992), the First Department held that it was not error for an assault victim to deny the existence of two prior dismissed and sealed arrests during his direct testimony. When the victim was cross-examined about those dismissed cases, the trial court struck the testimony. The First Department affirmed the conviction, concluding that “It was not error for the prosecutor to fail to disclose such confidential information, nor was it error for the complainant to deny the existence of prior arrests during direct examination.” Ellis, 184 A.D.2d at 308, 584 N.Y.S.2d at 570. The victim was permitted to avail himself of the statutory “nullity” that accompanied dismissal of his cases and could testify under oath that they never occurred.

Federal courts have relied on Ellis to conclude that witnesses may deny the existence of prior arrests if their cases were dismissed and sealed. See Padilla v. Artuz, 2010 U.S. Dist. LEXIS 144969 *18 (S.D.N.Y. 2010) (”As interpreted by New York courts, an individual testifying in court may deny the existence of a prior arrest that was sealed pursuant to Section 160.50. See People v. Ellis, 184 A.D.2d 307, 308, 584 N.Y.S.2d 569 (1992). As Ellis was thus permitted by state law to testify that he had never been arrested, Petitioner had no basis to impeach Ellis on that point.”) (by coincidence, the witness’ name in Padilla was “Ellis”); see also First American Corp. v. Al-Nahyan, 2 F.Supp.2d 58, 62 (D.C. Cir. 1998) (“It is clear that § 160.60 operates to allow a person protected by the Sealing Statute, as defined in § 160.50(1)(d) (hereafter a ‘protected individual’), to truthfully state on an application for employment, or even under oath in a court of law, that no arrest or prosecution took place.”) (citing Ellis).

What Rights Exist After a Case Has Been Dismissed Via an ACD?

Pursuant to CPL 160.50 (1) (a)-(c), after a case has been dismissed by way of an ACD, the following things must occur:

1.     the record of the proceeding shall be sealed,

2.     the clerk of the court shall notify (a) the commissioner of the division of criminal justice services and (b) the heads of all appropriate police departments and other law enforcement agencies that the action has been terminated in favor of the accused and that the record shall be sealed,

3.     upon notification from the clerk of the court, the following items shall be either destroyed or returned to the defendant (the choice is up to the agency):

a.      all photographs of the person,

b.     all fingerprints and palmprints (except for marijuana ACDs), and

c.      all official records or papers (except published court decisions).

In addition, under CPL 160.50 (4), a person in whose favor a criminal action or proceeding was terminated is entitled to an order from the court granting the relief listed in CPL 160.50 (1).