ACOD in New York is not as good as it sounds

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.

Marijuana In The Local News

In the past twenty four hours, the Albany Times Union has published three stories related to marijuana. As a marijuana lawyer who practices in Albany County and Capital Region courts, I can't help but comment.

Shen hockey in turmoil over alleged marijuana use

"According to multiple sources, the players are accused of smoking marijuana at the hotel the team stayed at while competing at the SUNY Morrisville tournament."

Is this really a story? I mean, would you expect anything else from high school hockey players, or hockey players anywhere for that matter? BIG STORY high school hockey players smoked weed and they are in BIG TROUBLE. Oooohhhh. Those kids are bad!

Traffic stop in Colonie turns up gun

"COLONIE — Two parolees face felony weapons charges after an officer, who smelled marijuana smoke at a routine traffic stop, allegedly found a loaded handgun in the car."

So I guess what happened here is that the cops are saying they smelled "burned marijuana" and that gave them probable cause to search the car without a warrant. As a marijuana lawyer I would be interested to know how the arresting officer can distinguish between burned marijuana and other burned vegetation. Was he trained in this skill? If so, did his instructor burn sage, and then cannibis? Parsley, and then cannibis? Tobacco, and then cannibis? The story does not mention if cannibis was actually recovered from the defendants.

O.D. Heck workers face drug charges

When I started reading this story, I thought these guys must have been smoking crack or doing coke. These guys took what many blue collar guys refer to as a "smoke break". Except, they were smoking the un-lethal illegitimate cousin of tobacco, marijuana. You know, I'm willing to bet these guys are great at their jobs and if they are smoking while working, they are probably self medicating. Two of the accused are grounds workers.

Despite the fact that the legislature of New York State decriminalized the possession of marijuana a long time ago, our society still suffers from "refer madness". The guys in this story are being treated as criminals because they were smoking in public which is a misdemeanor offense under NY Penal Law 221.10. The story says they were observed passing through a patch of woods and were on a deserted golf course where they were observed passing a pipe. The statute outlaws smoking weed in a "public place". It seems to me these guys did everything they could to conceal their smoking by avoiding a place where other people were not likely to be present.

Heroin in? A follow up.

I had a client not too long ago who was charged with "criminally possessing a hypodermic instrument" in violation of NY PL 220.45. My client was a heroin addict. He overdosed in a friends house. His friend called an ambulance. For some reason, the police showed up as well. Because there was a needle near my client, he was charged with a Class A misdemeanor, a relatively serious charge.

Well it turns out the house he allegedly committed his crime in was just across the town line, which was just outside the jurisdiction of the police department that wrote him the appearance ticket. Therefore, the court lacked "geographic jursiduction" over my client.

I showed up at the scheduled court appearance without my client and made an oral motion to dismiss the charge for lack of jurisdiction. The Judge really had no choice but to grant the motion.

The prosecutor basically conceded to my argument to dismiss. However, he questioned if what I was doing was in the best interest of my client, who obviously was a heroin addict. I felt a little guilty at first but now looking back, I am confident that a jail would have been worst possible place for my client to deal with his problem in.

Criminal Procedure

A big part of my job as a criminal defense attorney is simply making a prosecutor do his or her job. The criminal procedure law is very specific and failure to follow the rules for prosecuting a defendant can result in either a dismissal of a case, or a far better plea bargain offer than what was made initially. I make sure a prosecutor follows the rules. Most prosecutors do their job very well, especially in Saratoga County where I live. But every once in a while, a prosecutor slips up and my client makes out well. Don't worry, I'm not talking about violent criminals here. Most of my clients are white collar.

I'm always amazed when a prosecutor asks me if my client has a criminal history. First,I'm pretty sure that running a record on a defendant is part of a prosecutor's job. Second, most of my clients are actually criminals and are probably not telling me the truth. Third, I have no way of getting the records a prosecutor can get. So why would they ask me about my client's record?

Just the other day I was working out a deal for a client charged with a marijuana offense. I rejected the first plea bargain offer and I was negotiating. The prosecutor asked me if the client had a criminal history. My client did in fact tell me this wasn't his first offense but he couldn't remember the outcome of the case, nor could he even remember the charge. So the case could have been dismissed or plea bargained, who knows? When this prosecutor asked me the criminal history question, what was I supposed to say? I said I don't know, and that was the truth. Apparently that answer was good enough for him and he gave my client a sweet deal.