Posts Tagged ‘adjournment in contemplation of dismissal’

False Arrest Claims and ACD’s (Adjournments in Contemplation of Dismissal).

Wednesday, April 17th, 2013

Generally speaking, an offer of an Adjournment in Contemplation of Dismissal (“ACD”) to resolve criminal charges is usually an attractive plea bargain offer to a criminal defendant. After all, pursuant to New York CPL 160.50, individuals receiving ACD’s usually have their cases dismissed and sealed and deemed nullities after six months (or one year in marijuana cases). However, acceptance of an ACD can have negative consequences concerning possible civil lawsuits for wrongful arrests.

As explained in one recent case in federal court, Freedman v. Monticello Police Department, 2003 WL13571 (S.D.N.Y. 2003) (Buchwald, J.), acceptance of an ACD precludes a civil action against police officers (or the municipality that employs them) for malicious prosecution. The reason for this is that an element of the tort of malicious prosecution is a “termination in favor of the accused,” and although an ACD is not an admission of guilt or a conviction, it is not considered to be a “termination in favor of the accused,” either.

That being said, that case also explained that an ACD does not preclude a plaintiff from succeeding on a false arrest claim, as that tort does not require a “termination in favor of the accused” as an element. So, the bottom line is that acceptance of an ACD can have some negative impact on the potential recovery in a lawsuit, but it is not fatal to the possibility of successfully recovering damages.

If you or a loved one believe that you were wrongfully arrested and are interested in pursuing a civil rights lawsuit, you should strongly consider contacting an experienced criminal defense and civil rights attorney immediately.

Do I have to appear in court for my New York Desk Appearance Ticket?

Monday, May 7th, 2012

The short answer to the question above is: probably, but maybe not.  If you have been issued a Desk Appearance Ticket in New York City, the chances are that your case is an unusual misdemeanor that required some investigation by the prosecutor, or you are first-time offender charged with shoplifting, theft of services (like jumping a turnstile, for example), marijuana possession in public, or low-level possession of a controlled substance.   If your case falls into the latter category (shoplifting [Penal Law 155.25], theft of services [Penal Law 165.15], marijuana possession in public [Penal Law 221.10], or low-level drug possession [Penal Law 220.03]), and you have a genuine hardship in appearing (say, you live in a far-away state or a foreign country), you may be able to give an affidavit to an attorney authorizing him to appear on your behalf and accept a pre-arranged disposition on your behalf.  This is only true in some counties and in certain types of cases and needs to be arranged with the prosecutor in advance.

If you or a loved one have been given a Desk Appearance Ticket, you should contact experienced Desk Appearance Ticket attorneys who routinely handle a wide variety of Desk Appearance Tickets and have represented countless clients from out-of-state and foreign countries faced with the prospect of long and expensive trips for the sake of quick appearances in court on minor charges.  If you are unable to appear in court for your arraignment because of the distance or hardship, they may be able to help you.

The Law of Menacing in New York

Tuesday, November 15th, 2011

There are three separate menacing statutes in New York, each specifying a different gravity of offense.  Menacing is often paired with Stalking (Penal Law section 120.45) and Aggravated Harrassment (Penal Law section 240.30) charges, but can be charged as a standalone offense.

The basic charge is Menacing in the third degree (Penal Law section 120.15) is defined as follows:

A person is guilty of menacing in the third degree when, by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury.  Menacing in the third degree is a class B misdemeanor.

Menacing in the Second Degree (Penal Law section 120.14) is an example of a bump-up type charge.  There are three distinct aggravating factors which serve to elevate the charge to a class A misdemeanor, punishable by up to one year in jail.  These are (i) committing a third-degree menacing charge by displaying a deadly weapon, dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm (PL 120.14(1); (ii) by following a person or engaging in a course of conduct or repeatedly committing acts over a period of time which constitute a third-degree menacing charge (PL 120.14(2); and (iii) committing a third-degree menacing charge in violation of a duly served order of protection or stay-away order from a judge (PL 120.14(3).

Finally, there is a felony charge which bumps up a second-degree menacing charge where the person has been convicted of another second-degree menacing charge or the crime of menacing a police officer (PL 120.18) within two years of the commission of the present alleged offense.

Interestingly, the law was passed in 1994 and put into effect in 1995, to close what the legislature perceived to be a loophole in the anti-domestic violence laws and was passed as part of the “family protection and domestic violence intervention act of 1994.”  The law has been applied, however, to a variety of situations, not just those involving domestic violence or incidents between people who have had intimate access in the past, i.e. the ex-boyfriend/ex-girlfriend scenario.  For example, in Matter of Jason R. G., 23 A.D.3d 656 (2d Dep’t 2005), a person was prosecuted for chasing and threatening another person on the street with a knife.  In People v. Silva, 178 Misc.2d 538 (Bx. Co. Ct. 1998), a Bronx conviction was upheld where the defendant had threatened a police officer while touching his waistband after a drug-related conversation.

However, not all allegedly threatening conduct will constitute a violation.  In People v. Nwogu, 22 Misc.3d 201 (Qns. Co. Ct. 2008), Judge Lopresto held that a misdemeanor information was facially insufficient where it merely alleged that the defendant stood up and stated “I am going to blow up,” and that after he did so, a complainant observed the handle of a knife protruding from the defendant’s waistband.   The judge held that the defendant’s words were not directed at anyone in particular (which was required under the statute) and that nobody could have been placed in fear of death, imminent serious physical injury, or physical injury by merely observing the knife handle.  Moreover, the court held, there were insufficient allegations that the defendant intended to display the weapon, as any display as alleged in the complaint was inadvertent.  Moreover, proof of an injury alone will not suffice to validate a Menacing charge.  See Matter of Anisha McG., 27 A.D.3d 749 (2d Dep’t 2006).

If you have been arrested for this offense, you should speak with a menacing, stalking or aggravated harrassment lawyer in New York City.

Caselaw on the “Nullity” Concept in Adjournment in Contemplation of Dismissal or Dismissed and Sealed Cases in New York

Friday, June 18th, 2010

This post discusses some caselaw on the “Nullity” Concept in Adjournment in Contemplation of Dismissal or Dismissed and Sealed Cases in New York.  An adjournment in contemplation of dismissal (“ACD”) pursuant to Criminal Procedure Law section 170.55 is an outcome defense attorneys commonly seek because of the very strong language contained in the final paragraph concerning the lasting effect of that particular disposition:

    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  thedefendant  shall  be restored, in contemplation of law, to the status he occupied before his arrest and prosecution.

A question often arises as to what the term “nullity” means when it comes to future questions concerning the arrest or prosecution.  Below are two cases that tend to shed some light on the question of what must or must not be said concerning a dismissed case:

The first, People v. Ellis, 184 A.D.2d 307 (1st Dep’t 1992), suggests that 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 proper 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.  Certainly, then, an argument could be made based on this decision that a person should be entitled to deny the arrest and conviction upon questioning under any circumstances.

The second, In the Matter of Alonzo M. v. New York City Dep’t of Probation, 72 N.Y.2d 662 (1988), clearly states the policy behind the rule.  There, tthe 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.”  Id (citations omitted).

If you have been charged with a crime and have questions about adjournments in contemplation of dismissals or the effect of any case that has been dismissed and sealed, you should contact experienced criminal defense attorneys.