Adjournments in Contemplation of Dismissal (ACD / ACOD)

If you've been arrested, it is because someone is saying that you committed a criminal act. This accuser could be a police officer and/or a civilian witness. Most people charged with a crime in New York are convicted. According to the BBC, New York has a 67% conviction rate. Generally speaking, the worst case outcome is a conviction, the best case scenario is a dismissal. Dismissals can, depending on the circumstances, be negotiated or result from an acquittal. An acquittal is a judgement that a person is not guilty which, in New York, can be made by a judge or jury. One way an attorney can fight for a dismissal in New York is by applying for an adjournment in contemplation of dismissal (ACD). An ACD it is not available in most cases, but might be possible depending on the facts and circumstances of your case.

An attorney's application for an ACD, if granted, could mean that your case is adjourned, or rescheduled, for a specific date when it would be dismissed as long as certain conditions are met. If it is denied, the prosecution would continue. So, an ACD is an agreement between you, the District Attorney, and the court to have your case rescheduled with the intention of dismissing it. The ACD is described in section 170.55 and 170.56 (marijuana cases) of the Criminal Procedure Law, and is specific to New York State. Other states have similar procedures such as Pennsylvania's Accelerated Rehabilitative Disposition (ARD), New Jersey's Conditional Discharge, and Illinois's Offender Initiative Program.

An application for an ACD is made by your attorney. It can also be done after a guilty plea but before sentencing. If the criminal court judge accepts the application, you could be held responsible for all imposed conditions which could include community service, drug treatment, drug testing, counseling, monitoring, psychiatric treatment, anger management classes, restitution, or any other special conditions that the court and/or District Attorney has negotiated with your attorney. Afterwards, you may have to return to court periodically to demonstrate that you are in full compliance.

Can I get an ACD?

Even if it is your first arrest, an ACD may be very unlikely. Because an ACD, if granted, could result in a dismissal, it is highly sought-after. The prosecutor is not under any obligation to offer an ACD and the prosecutor could suffer if he or she offers ACDs in a situation that does not warrant it from the prosecutor's point of view. This means that your attorney's request could be denied. Whether or not an ACD is offered by the prosecutor will depend, greatly, on the facts and circumstances of your case. Because a criminal case carries the threat of conviction and the consequences of having a pending criminal charge, you should contact an attorney to get a realistic understanding of whether an ACD is possible in your case. For some people it is, but for others, it is not. Unfortunately, a list of qualifying factors for getting an ACD is not possible because it is often negotiated on a case-by-case basis.

What if I can't get an ACD?

Waiting for your court date takes a long time but once in court, things move quickly. If your attorney is not able to get an ACD, he or she must be prepared to say (or not say) certain things to the judge to keep your rights intact. For example, your attorney may need to respond to a bail application, request a motion schedule, request certain evidentiary hearings, file documents, or make requests. From there, your case could be schedule for further proceedings or for your trial. The main thing is don't go to court alone. Contact us at 212-619-3900 before your court date to discuss the facts and circumstances of your case.

Disadvantages to Accepting an ACD

Maybe you don't want an ACD. There are many reasons for not wanting it and you should think about it carefully because after you accept it, it may be impossible to change your mind.

Employment. Do you have plans to work in finance, banking, teaching, law enforcement, or in any licensed or professional setting? Recent changes in the law have made it easier for employers to use your ACD against you.

  • Employment problems due to accepting the ACD. Recently, changes in federal case-law have made it easier for an employer to ask you if you've ever received an ACD. Your answer could lead to all sorts of problems.
  • Employment problems due to the duration of the ACD. Employers may have access to your arrest and/or court record. This could lead to employment problems during the adjournment period and beyond. In extreme cases, you may be unable to work during the adjournment period which could last for a year. This absence could, independently, lead to termination. The risk is greater if you work in a regulated profession.

International Travel and Immigration. Over the last year, scrutiny of international travelers has increased because of rising geopolitical tension and terrorism. This increased scrutiny means that in 2014 and for the foreseeable future, you may have difficulty traveling internationally during the ACD period. This difficulty could last even longer than the adjournment period depending on how your case information is shared, disseminated, and stored before, during, and after the ACD. For this reason, you should take any step possible to get your record sealed as quickly as possible and obtain independent confirmation.

Immigration. Recently, criminal deportations of non-citizens has increased and international tension is forcing US Citizenship and Immigration Services (USCIS) and Customs and Border Protection (CBP) to take a closer look at non-citizens. This means that in 2014 and for the foreseeable future, if you aren't a U.S. Citizen and you've been arrested, you face greater scrutiny. Even if you get an ACD, you may still face difficulties and your ACD could be the problem. At the Law Office of Lance Fletcher, we work closely with an experienced immigration attorney to reduce the risk of immigration consequences. Depending on the facts of your case, it may be possible to negotiate an outcome more suited to your circumstances.

Licenses / Permits. You may face difficulty with getting professional licenses and permits. Most of the difficulty surrounds pending license applications or renewals but some licenses / permits, such as pistol permits, could be permanently affected.

Civil Liability. Accepting an ACD may affect your ability to sue someone and could, depending on the conditions, make it more likely that you could be sued. If you were falsely arrested, you may not want to take an ACD. If you might be sued by someone who claims that you injured them, you may not want to take an ACD conditioned on anger management because this could be a problem later in a civil suit. On the other hand, an ACD might be the best strategy but this is something to discuss with your attorney before the court date.

Steps to take

  1. Don't go to court alone. Make sure you've had time to find the right lawyer.
  2. Consider alternatives to an ACD
  3. If you take an ACD, talk to your lawyer about confirming dismissal and sealing
  4. If you aren't a U.S. Citizen, get a written opinion from an immigration lawyer (we can provide this)

What we can do for you

  1. Let you know if an ACD is a realistic possibility in your case
  2. Explore the strengths and weaknesses of your case
  3. Help you determine the best strategy which may or may not be an ACD
  4. Obtain a written opinion from an experienced immigration attorney regarding the potential risks of an ACD for you

In a perfect world and if your attorney's application for an ACD is approved, an ACD wouldn't be a problem because it isn't a conviction. Rising international tension and a recent federal court ruling have changed this. Now, your ACD can be the source of more problems and frustrations than it's worth but that will greatly depend on the facts and circumstances of your case. Lance Fletcher, a former Assistant District Attorney at the Manhattan District Attorney's Office, is happy to discuss your options and help you arrive at a winning strategy. Contact us today for a free case evaluation.

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