I have discussed the ACOD, (adjournment in contemplation of dismissal), a few times in the past on this blog but I believe it was mostly in the context of marijuana offenses. You can read them here, here, and here. The procedure for a marijuana related ACOD is codified in New Criminal Procedure Law at section 170.56.
The ACOD is also available to dispose of offenses other than marijuana as well. Everything from other controlled substance offenses (cocaine, crack, mushrooms, etc.) to assaults and sex crimes can also be dismissed by an ACOD. This procedure can be found at NY CPL Section 170.55. The difference between a marijuana ACOD and a non-marijuana ACOD under 170.55 is that the consent of the District Attorney (DA) is required for a non-marijuana related ACOD. Marijuana cases can be dismissed by an ACOD at the discretion of the judge, even if the DA opposes it. (However, the reality in most courts is that the judge will defer heavily to the opinion of the DA).
I am beginning to see a problem with the ACOD and the public's perception of what it actually means. Most people believe that an ACOD means that the charge(s) will be sealed and expunged as if they never happened. Indeed, when the Legislature created the ACOD statute it did so with the intent that the potentially severe damages and adverse consequences to a person's reputation and future employment prospects would be prevented by an ACOD. (There are a few statutory exceptions with regard to who can see information with regard to a case that was dismissed by an ACOD including any potential employer of a police officer and the military).
Sadly, the system is not working as the State intended it to. The ACOD is fine for people who are charged with an appearance ticket and there is no arrest and processing, but for those who are arrested, a criminal background check reveals that they were arrested, even when the case is dismissed by an ACOD. Non-criminal violations like UPM or Disorderly Conduct, when there is no arrest, do not appear on criminal background checks (at least I have not seen any yet). So what good is an ACOD if a potential employer can see that a person was arrested in the past? Explaining to the employer that an ACOD is not a conviction or an admission of guilt (which is what the law says) does not help that person who is being denied a job because of a previous arrest.
The only truly reliable way to make an arrest and prosecution go away "as if it never happened" is either an outright dismissal or acquittal at trial. So if a person is truly concerned about making sure information related to a criminal case is truly "sealed" from public view, he or she may have no option other than to fight the charges. And these days, with the internet and police blotters being published online, almost every arrest is publicized so even a dismissal will not remove the tarnish to reputation. A Google search of a person's name will provide links to police blotters published in local papers.
Showing posts with label ACOD. Show all posts
Showing posts with label ACOD. Show all posts
Friday, November 11, 2011
Friday, January 14, 2011
Unlawful Possession of Marijuana (UPM) and the ACOD
Thanks to the internet, I have noticed that people calling about UPM cases are pretty well informed about the law in advance of their call to me. Many of these people call simply to confirm what they think they already know. What many people know is that UPM (New York Penal Law Section 221.05) is punishable by a fine of no more than $100.00 for the first offense. What many people do not know is that a conviction for UPM requires a mandatory surcharge of $95.00 in addition to the fine, so a guilty plea for a first offense will cost a couple hundred bucks. My fee for handling a local UPM case starts around $300.00. Very often I can spare my client a trip to court (if certain conditions are met) and almost all of the time I can get the case dismissed. Clearly, hiring a marijuana lawyer is money well spent for a UPM case. Sadly, I see many UPM defendants plead guilty to the charge. They just don't think a lawyer is necessary and unfortunately, most judges do not encourage the defendant to find a lawyer and they accept the guilty plea. Unlike misdemeanor or felony cases, there is no statutory or constitutional right to a public defender for a UPM case (which is very unfortunate due to the seriousness of the collateral consequences of controlled substance convictions).
What many people also know is that many UPM cases are dismissed. It's called an ACOD "Adjournment in Contemplation of Dismissal", (New York Criminal Procedure Law Section 170.56) To avail yourself of the benefit of an ACOD, you generally will need a lawyer. It is not a simple matter of asking for it. And the judge will want to get the prosecutor involved. This is where you really need a lawyer to help you if you are thinking of going at it alone. This is not an outright dismissal. It is a conditional dismissal and the the case will not be dismissed until the conditions are met. The conditional period can last as long as twelve months. Usually, the only condition is that the defendant not get arrested during the conditional period. But sometimes things can go wrong, very wrong. For example, I spoke with someone the other day whose UPM case was resolved by an ACOD a couple of years ago. One of the conditions of the ACOD was that she attend group counseling. This recreational and responsible marijuana smoker soon found herself at weekly meetings with heroin addicts, crack heads, and a counselor who insisted this young lady was a serious drug abuser. Had she found a lawyer, this would not have happened.
If you find yourself charged with UPM in New York, you would be very wise to talk to an attorney. There are many things that can go wrong if you try to handle it yourself and there are many lawyers (like me!) whose fees are very reasonable for a UPM case.
What many people also know is that many UPM cases are dismissed. It's called an ACOD "Adjournment in Contemplation of Dismissal", (New York Criminal Procedure Law Section 170.56) To avail yourself of the benefit of an ACOD, you generally will need a lawyer. It is not a simple matter of asking for it. And the judge will want to get the prosecutor involved. This is where you really need a lawyer to help you if you are thinking of going at it alone. This is not an outright dismissal. It is a conditional dismissal and the the case will not be dismissed until the conditions are met. The conditional period can last as long as twelve months. Usually, the only condition is that the defendant not get arrested during the conditional period. But sometimes things can go wrong, very wrong. For example, I spoke with someone the other day whose UPM case was resolved by an ACOD a couple of years ago. One of the conditions of the ACOD was that she attend group counseling. This recreational and responsible marijuana smoker soon found herself at weekly meetings with heroin addicts, crack heads, and a counselor who insisted this young lady was a serious drug abuser. Had she found a lawyer, this would not have happened.
If you find yourself charged with UPM in New York, you would be very wise to talk to an attorney. There are many things that can go wrong if you try to handle it yourself and there are many lawyers (like me!) whose fees are very reasonable for a UPM case.
Sunday, December 21, 2008
Success Stories 2008
Guilty client charged with two Class A Misdemeanors: Charges Dismissed
This client got very lucky. He was caught on tape stealing. This particular client had a lot to lose because he had just graduated from college with a very expensive advanced degree and a criminal conviction would have hampered his ability to get licensed in his profession. Other criminal defense lawyers I have talked since would have settled for a plea bargain to one Class A misdemeanor. I was able to get the charges dismissed via the ACOD (Adjournment in Contemplation of Dismissal) Statute. NY CPL 170.55. Granted, not every prosecutor would have been convinced to go for that deal, but I convinced the prosecutor the dismissal was required in the "furtherance of justice".
What the heck does "furtherance of justice mean"? NY CPL 170.40. is the statute that explains the meaning of those words and states that to prevent injustice the court must consider a laundry list of factors including among others "the history, character, and condition of the defendant" NY CPL 170.40 (1)(d) and "any exceptionally serious misconduct of law enforcement personnel..." NY CPL 170.40 (1)(c).
In this case I demonstrated to the prosecutor and the court that the smallest mark on my client's record could potentially ruin his career before it even began and that considering the sacrifices my client had made to achieve his advanced degree, the only just outcome was a dismissal. Of course my client had to perform 50 hours of community service as a condition of the dismissal. A small price to pay.
When it comes to first time offenders, the "furtherance of justice" criteria can be successfully employed to get really good deals. Here is another story:
Criminal Possession of a Controlled Substance 7th Degree NY Penal Law 220.03. Charge Dismissed
This was one of my most interesting cases of 2008 because It gave me the opportunity to do some research and the courtroom experience was a bit unusual, yet very fun. Again, my client had a lot to lose were he to be convicted even of a violation because his career would be in jeopardy. (Under NY Penal Law, a violation is an offense, not a crime. This is a very important distinction for obvious reasons. NY Penal Law 10.00(6) defines a crime as a misdemeanor or felony.)
My client got busted with a very small amount of narcotics in a public place. He was in a line and "consented" to a search of his bag. I learned that there was direct coordination between law enforcement and the private security company conducting the searches and that some of the security company staff were off duty cops. Ordinarily, anyone can be legally searched upon entering private property or public property. And if the searcher discovers contraband, the searcher can "arrest" that person and turn them over to the police. However, the rules change when the searcher is a police officer or is otherwise affiliated with the Government. That is because the 4th amendment applies and the Government needs either probable cause or a warrant to search you. Because the searchers in this case were acting in concert with the police with the objective of busting people for drug possession, the searchers essentially became Government agents conducting warrantless searches without probable cause making the searches un-constitutional. Anyway, that was my theory and I referred to it as part of my motion to dismiss in the "furtherance of justice".
The day this case was scheduled for arraignment was a special day set aside by the court to hear cases specifically related to the event at which my client was busted. Some of the most prominent criminal defense lawyers in the area had clients who were busted at the event including one guy who is arguably the most prominent criminal defense attorney in Albany. I discussed my legal theory with him about the searches and he not surprisingly agreed with me but he, like me, had clients who hired us to get deals, not contest the charge.
When my turn with the Assistant District Attorney came up, the Judge happened to be present during the meeting. I used that opportunity to explain to both the People and the Court why the charge against my client should be dismissed under the ACOD statute. I was prepared with arguments that satisfied all the criteria of the "furtherance of justice" statute. At the end of my presentation the judge said he would accept the deal. The ADA said he would as well but we would have to adjourn the court date because he did not want all the other attorneys in the court room to hear that he gave me that deal.
I consider that case a win.
This client got very lucky. He was caught on tape stealing. This particular client had a lot to lose because he had just graduated from college with a very expensive advanced degree and a criminal conviction would have hampered his ability to get licensed in his profession. Other criminal defense lawyers I have talked since would have settled for a plea bargain to one Class A misdemeanor. I was able to get the charges dismissed via the ACOD (Adjournment in Contemplation of Dismissal) Statute. NY CPL 170.55. Granted, not every prosecutor would have been convinced to go for that deal, but I convinced the prosecutor the dismissal was required in the "furtherance of justice".
What the heck does "furtherance of justice mean"? NY CPL 170.40. is the statute that explains the meaning of those words and states that to prevent injustice the court must consider a laundry list of factors including among others "the history, character, and condition of the defendant" NY CPL 170.40 (1)(d) and "any exceptionally serious misconduct of law enforcement personnel..." NY CPL 170.40 (1)(c).
In this case I demonstrated to the prosecutor and the court that the smallest mark on my client's record could potentially ruin his career before it even began and that considering the sacrifices my client had made to achieve his advanced degree, the only just outcome was a dismissal. Of course my client had to perform 50 hours of community service as a condition of the dismissal. A small price to pay.
When it comes to first time offenders, the "furtherance of justice" criteria can be successfully employed to get really good deals. Here is another story:
Criminal Possession of a Controlled Substance 7th Degree NY Penal Law 220.03. Charge Dismissed
This was one of my most interesting cases of 2008 because It gave me the opportunity to do some research and the courtroom experience was a bit unusual, yet very fun. Again, my client had a lot to lose were he to be convicted even of a violation because his career would be in jeopardy. (Under NY Penal Law, a violation is an offense, not a crime. This is a very important distinction for obvious reasons. NY Penal Law 10.00(6) defines a crime as a misdemeanor or felony.)
My client got busted with a very small amount of narcotics in a public place. He was in a line and "consented" to a search of his bag. I learned that there was direct coordination between law enforcement and the private security company conducting the searches and that some of the security company staff were off duty cops. Ordinarily, anyone can be legally searched upon entering private property or public property. And if the searcher discovers contraband, the searcher can "arrest" that person and turn them over to the police. However, the rules change when the searcher is a police officer or is otherwise affiliated with the Government. That is because the 4th amendment applies and the Government needs either probable cause or a warrant to search you. Because the searchers in this case were acting in concert with the police with the objective of busting people for drug possession, the searchers essentially became Government agents conducting warrantless searches without probable cause making the searches un-constitutional. Anyway, that was my theory and I referred to it as part of my motion to dismiss in the "furtherance of justice".
The day this case was scheduled for arraignment was a special day set aside by the court to hear cases specifically related to the event at which my client was busted. Some of the most prominent criminal defense lawyers in the area had clients who were busted at the event including one guy who is arguably the most prominent criminal defense attorney in Albany. I discussed my legal theory with him about the searches and he not surprisingly agreed with me but he, like me, had clients who hired us to get deals, not contest the charge.
When my turn with the Assistant District Attorney came up, the Judge happened to be present during the meeting. I used that opportunity to explain to both the People and the Court why the charge against my client should be dismissed under the ACOD statute. I was prepared with arguments that satisfied all the criteria of the "furtherance of justice" statute. At the end of my presentation the judge said he would accept the deal. The ADA said he would as well but we would have to adjourn the court date because he did not want all the other attorneys in the court room to hear that he gave me that deal.
I consider that case a win.
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