An Adjournment in Contemplation of Dismissal (ACD)

An adjournment in Contemplation of Dismissal, or an ACD, is a provision under the New York Criminal Procedure Law designed to nullify the effect of an arrest. After the statutory waiting period, the case will be administratively dismissed if the terms of the ACD are complied with.

A recipient of an ACD is provided with certain protections. For instance, NYCPL §160-60 specifically states that an ACD shall not “operate as a disqualification of any person from any occupation or profession.”

Is this protection absolute? The simple answer is no. Under NYHRL §296(16), a corporation may be permitted to consider a past ACD. Under the Federal Deposit Insurance Act (FDIA), the banking industry may consider pre-trial diversion programs used in connection with the prosecution for a criminal offense involving dishonesty, breach of trust or money laundering. Courts have split whether an ACD meets the definition of a pre-trial diversion program, thereby potentially impacting employment within the banking community.

Other potential negative impacts of an ACD involve: its’ consideration when applying for a handgun; potential employers could have access to court records during the ACD waiting period, or during any naturalization process period; preclusion from suing under a malicious prosecution theory; and the criminal charges may be restored if you are re-arrested prior to sealing.

The ACD does not expunge the arrest, instead, the arrest is sealed. Thus, anyone attempting to obtain access to the sealed records would have to apply to the Court for an Unsealing Order before the records are made available. However, they must meet the burden of showing a compelling need to obtain said records.

If you have a criminal law question, please feel free to consult The Law Office of Jeffrey L. Emdin at (212) 265-1350 and jemdin@defendulaw.com

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Jeffrey L. Emdin

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