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
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
- Don't go to court alone. Make sure you've had time to find the
- Consider alternatives to an ACD
- If you take an ACD, talk to your lawyer about confirming dismissal and sealing
- 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
- Let you know if an ACD is a realistic possibility in your case
- Explore the strengths and weaknesses of your case
- Help you determine the best strategy which may or may not be an ACD
- 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.