An Adjournment in Contemplation of Dismissal (“ACD) is a type of dismissal of criminal charges, set forth in N.Y. Criminal Procedure Law 170.55. An ACD may be entered into at any time before a defendant pleads guilty, or the commencement of the criminal trial. The ACD can be requested by the prosecutor, the defendant, or the court with the consent of both the prosecutor and the defense. 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.” Under 170.55 (8)
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.
This means that the criminal case against the defendant will be adjourned, for a certain period of time under CPL 170.55, it can be up to six months, and under CPL 170.56 (2) for up to one year. At the end of the period, the charges against the defendant will be dismissed. The underlying condition is that the defendant stay out of trouble during this time period, however, otherwise the criminal charges against him may be restored by the prosecutor.
Question: What is the Difference Between an ACD under CPL 170.55 and one under CPL 170.56?
Unlike a traditional ACD, a marijuana ACD under CPL 170.56 can be granted upon motion of the defendant without the consent of the district attorney’s office. The straight ACD statute does not provide the law to shorten the period, however in practice the period is shortened for compelling reasons. Whereas marijuana ACDs can be shortened by statute.
Question: After an ACD period, can one deny the existence of the arrest and prosecution?
Yes, under People v. Ellis, 184 A.D.2d 307 (1st Dep’t 1992), a person can freely deny the existence of the arrest or prosecution of the case, even while testifying under oath. In that case, the Appellate Division, First Department held that it was permissible for a person to deny the existence of an arrest that had been dismissed and sealed pursuant to Criminal Procedure Law section 160.60 under oath at a subsequent court proceeding concerning an unrelated matter.
Second, In the Matter of Alonzo M. v. New York City Dep’t of Probation, 72 N.Y.2d 662 (1988), the legislative policy is elaborated. The Court of Appeals noted that “when an action is favorably disposed of in an adult proceeding the records are sealed under CPL 160.50, the arrest and prosecution are deemed a nullity, the accused is restored to the status occupied before arrest, and unless specifically required by statute, or directed by a superior court, the accused is not required to divulge information regarding the favorably terminated action. This statutory safety net protecting adults ensures that records and materials generated from an arrest and a favorably terminated proceeding are eliminated as facets of the accused’s criminal pedigree.”
Question: Can an Employer Ask About an Arrest or Criminal Prosecution that resulted in an ACD?
No, N.Y. Executive Law Section 296, subdivision 16, prohibits such a question with limited exceptions, for example on applications to become a policeman or other specific jobs.
Article 16 of Executive Law Section 296 it states, “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”.
Question: If you accept an ACD can you still sue for violation of your civil rights? In particularly, false arrest and malicious prosecution?
Yes, and No. The joining in an application for an ACD precludes a civil action for malicious prosecution as it is not deeded a termination in favor of the accused. However, this is the only component of a civil rights lawsuit that you are precluded from bringing. You can still sue for false arrest and other claims.