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Wednesday, October 19, 2011

Understanding the ACD in New York

Basic Overview:
An ACD (adjournment in contemplation of dismissal) also known in some locales as an ACoD is a mechanism which allows for the postponement of a criminal case with the understanding that if the accused fulfills certain conditions, all charges will be dismissed. The conditions vary but can be as simple as staying out of trouble and not being rearrested during the postponement period. They may also include the additional requirements of community service, restitution to the alleged victim of the occurrence, obeying a court Order of Protection, a shoplift awareness class, or some anti-drug program or class. An ACD is not a form of probation or a conviction of any kind. The person receiving the ACD will not be asked to admit any wrongdoing or facts about the case. If the conditions are met, at the end of the adjournment period, the charges are dismissed and the record is sealed. An ACD can only be granted if the judge and prosecutor both consent to it.

How long does it last?:
For most cases, the postponement period pursuant to Criminal Procedure Law 170.55 is six months. The exceptions are family offenses CPL 530.11 and cases involving marihuana CPL 170.56 which are both one year adjournments.

Do I need to keep going back to court?:
Typically, no. After the adjournment period is up and if there is no motion to restore the case by the prosecution, the case is dismissed and sealed without your presence being required. However, if you are required to complete some task(s) as a condition of your receiving the ACD, (i.e., performing community service, paying restitution, attending classes, etc.), you will be required to return to court and provide proof that you have completed those condition(s).

Are there costs associated with an ACD?:
There are no court administrative fees, fines or victim services fees associated with an ACD.  However, there may be costs associated with fulfilling the specific conditions of your ACD: paying restitution or paying for treatment or classes.

What happens if I violate one of my conditions?:
If you are rearrested or do not fulfill any of your other condition, the prosecutor can seek to have the case restored to the calendar. The good news is that there is no automatic punishment imposed for violating a condition; the only consequence is that the case is restored to the same position it was in prior to the ACD being granted. In other words, the prosecution is back to having to prove you guilty of a crime "beyond a reasonable doubt".

Are there any negative consequences of an ACD?:
An ACD will likely prevent the accused's ability to sue for malicious prosecution but should not prevent your ability to sue for wrongful arrest or excessive force. Also, be aware that the charges are not dismissed until after the adjournment period which may be up to one year. So technically, you will still have an active pending criminal case during that time period. This may have consequences on your employment or immigration status.

Will there be a record of the case after it's dismissed?:
The accused is restored to the status they enjoyed prior to their arrest. Therefore all records of the prosecution are sealed and expunged. There is no rap sheet and no criminal record. However, it is common practice in New York that local law enforcement keeps a record of the arrest. Technically, access to the contents of those arrest records should not be allowed without an unsealing order by a judge.

Should I take an ACD if it's offered?:
Notwithstanding the consequences mentioned above, a criminal defense attorney's goal is to get their client's charges dismissed. An ACD allows for this result with minimal consequences for failure. Especially where the possibility of a permanent criminal record and potential jail time exists, it is the rare case where it is not in the client's best interest to accept an ACD.  Of course, you should speak to an experienced criminal defense attorney before making any final decisions. 

Additional Resources

See also, New York Criminal Procedure Law Section 170

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