As discussed in my previous blog (Legal Definitions, March 14, 2008), convictions for misdemeanors and felonies in New York State can leave a person convicted of a crime with a permanent criminal record and many other “collateral” consequences such as effecting employment, immigration and civil rights. Here at the New York Criminal Defense Law Firm, Tilem & Campbell, preserving a clients “clean” record is often our paramount concern. Many clients however want to preserve their “clean record” without the expense and risk of taking their case to trial. (Please see our March 7, 2008 blog for some general principles of plea bargaining.)Moreover, New York does not have any mechanism for “expunging” a criminal record once you have one. So the stakes are high and the effects are long lasting.
New York has two options than can often help; they are the Violation and the ACD. The ACD which stands for Adjournment in Contemplation of Dismissal is often the best option for a person accused of a relatively minor crime or offense in New York. If an accused is granted an ACD their case is adjourned for a period of either six months or a year depending on the offense. (Marihuana and domestic violence have one year ACD’s.) On the next date (six months or one year later), if the accused has stayed out of trouble and otherwise abided by the terms of the ACD, the accused does not have to appear in Court and the case will be dismissed and the record sealed. If the person is rearrested or does not live according to the terms of the ACD the case is restored to the Courts calendar and the prosecution begins where it was stopped when the ACD was granted. In my seventeen year legal career, both as a New York County Prosecutor and a Criminal Defense Attorney, I have seen an ACD restored only a handful of times. The net result of an ACD, is almost always a dismissal and a sealed record.
The New York State Penal Law defines several offenses that are not crimes. The two most common examples are Disorderly Conduct and Harassment. Although these offenses are defined in the New York State Penal Law and they carry maximum sentences of 15 days in jail, they are not crimes but are called Violations; they are neither misdemeanors nor felonies. A conviction for a violation in New York State will not leave you with a criminal conviction. In addition the Criminal Procedure Law in New York (CPL) requires Courts to seal the record of conviction of a violation. It is important to remember that the sealing of the record is under a different section of the CPL than the sealing for an ACD or, for example, a dismissal and that sealing is less complete than if the matter is dismissed.
It is important to think toward the future. Many job applications and other applications will ask if you have “ever been convicted of a crime.” If you receive an ACD or a violation the answer is clearly no. However, certain applications such as the application for admission to bar or to become a police officer may ask about arrests. Neither an ACD nor a violation can undo the fact that you were arrested and you must answer truthfully that you have been arrested. However, an arrest in and of itself is generally not sufficient to keep you out of the bar or to keep you from becoming a police officer if you are truthful about what happened. In any case, you should consult an experienced criminal defense lawyer such as one of the lawyers at Tilem & Campbell if you are unsure how to answer a question on an application after receiving an ACD or a conviction for a violation. As a free service to our clients, we do not charge for over the telephone conversations about questions on applications even years after our representation has ended.