Adjournment in Contemplation of Dismissal (ACD) - The "Holy Grail" of Misdemeanor Negotiations (but not always)
By: Don Murray, Partner, Shalley and Murray
An Adjournment in Contemplation of Dismissal is a negotiated settlement that is possible in some misdemeanor cases in New York City. The short-hand term used in New York City is "ACD" (to be distinguished from the way it is often referred to outside of the City -- "ACOD". A lawyer who uses the phrase "ACOD" is a lawyer who is not familiar with New York City Criminal Court, or who is used to practicing outside New York City. This can be a way to help you tell if the lawyer you are talking to truly practices in New York City on a regular basis.
In any event, the ACD is in many respects the "Holy Grail" of negotiated settlements of misdemeanors in New York City. It is almost always the goal of any misdemeanor negotiation, including the goal of some people who maintain their innocence. Here is why:
A good way to think about an ACD is to think of it as a "benefit of the doubt". Instead of all the legal mumbo jumbo, imagine a judge saying the following to you: "Look Mr. Smith, I know you have been charged with this misdemeanor. But you seem like a pretty nice guy. You don't have a criminal record already. I don't really have any reason to think you are a sinister person. Your lawyer has convinced me that you are worthy of a benefit of the doubt. So I am going to give it to you. I don't care whether you are guilty, not-guilty, or something in-between. I am just going to adjourn your case for six months (1 year for a marijuana case). You don't have to do anything. You don't have to pay a fine. You don't have to admit guilt to anything. You don't even have to say anything other than that you are in agreement with this. After six months (or 1 year for a marijuana ACD) the case will be dismissed and sealed as long as you do not commit a crime."
This is not exactly what a judge will say to you in New York City Criminal Court, but it is a good way to think about what it means. Sounds pretty good, doesn't it?
There are a couple of things to highlight about an ACD.
An ACD is not a conviction for anything. It is not an admission of wrongdoing. It is not a "no contest" plea. It is not a "plea" of any kind. You are not on probation for six months. (Probation is something that happens to people who are convicted of crimes and who are monitored by the Department of Probation for three years on an A misdemeanor.)
Think of an ACD as a free chance to have your case dismissed forever with no cost or risk to you (in most cases).
Sometimes, people are suspicious that the dismissal that comes after six months from an ACD is somehow a lower quality dismissal than what would come from a victory after a trial. People are therefore tempted to want to reject an ACD in favor of going to trial to try to secure a "not guilty" verdict from a jury.
Realize that the criminal justice system at least sees no quality difference between the dismissal that comes after an ACD and the dismissal that results from a not guilty verdict after a trial. Objectively, the New York City Criminal Justice System simply recognizes that the case was dismissed. You don't get more "points" for a dismissal that comes as a result of a not guilty verdict after a trial.
The only advantage that a not guilty verdict offers over the ACD is the instantaneous effect of the dismissal. Keep in mind, however, that if your lawyer is able to negotiate an ACD for you toward the beginning of your case, then your choice will be to accept the ACD now (dismissal six months later) or go to trial approximately six months or longer down the road. If you win the trial, the case will be dismissed immediately, but you will have waited about the same time for it anyway.
In some circumstances, such as those that might involve orders of protection there can be an advantage to going to trial over accepting an ACD. Since an ACD is a negotiated settlement, orders of protection are frequently made a part of the bargain. It is to help you in dealing with these sorts of subtleties that you need a lawyer.
In addition, there are some other situations in which an ACD might be considered less advantageous than even pleading guilty to a violation offense like disorderly conduct. This strange situations are not related to the accused's situation within the criminal justice system. Rather they are related often to outside issues like immigration and employement issues. Federal Immigration law doesn't always understand or recognize the truth about the ACD in New York. Jobs and licensing agencies, including those that are connected to New York State often do not understand the ACD properly.
Therefore, if you are not a citizen, or if you are employed in a position where background checks are done, you would be wise to consult with a lawyer about the ACD before taking it. It may well be completely fine, but it is something that ought to be discussed with a criminal defense attorney and potentially reviewed with an immigration lawyer or with a union representative or employment lawyer.
Fines, Community Service, and Restitution with ACDs
Sometimes, a "straight" ACD is not negotiable, but ACDs with qualifications are.
Please realize that you can't be sentenced to pay a fine with an ACD. Since an ACD is not a plea of guilty to anything, it is illegal to impose a "punishment" (a fine). Therefore, if someone is talking about a settlement that involves you paying a fine, then you are not talking about an ACD. Police will often tell people about getting ACDs and paying fines. This betrays their misunderstanding of the system. This is why you need to hire a lawyer instead of relying on the legal advice of the person who arrested you.
On the other hand, community service is not considered a punishment under the law, so it has been determined that the Government can ask you to perform community service in exchange for a willingness to go along with an ACD. It may seem peculiar that in a situation in which you formally admit no guilt to anything, you are also asked to perform community service. Nevertheless, rest assured that, at least as far as the Criminal Justice System is concerned, the fact that you agree to community service is not equal to an admission of guilt.
Finally, in relevant cases, the Government can condition its willingness to offer the ACD on your willingness to pay restitution to a complaining witness. Here the line between acknowledgement of guilt and non-acknowledgement of guilt gets fuzziest.
From the perspective of the Criminal Justice System, rest assured again, that your agreement to pay restitution (reimburse someone for medical bills after a fight, for example) does not equal an admission of guilt. At the conclusion of the ACD period, your case will be dismissed and sealed just the same. Outside the Criminal Justice System, however, employers or possibly the immigration courts might take a different view.
In my experience, for example, I represented a person who worked for MTA as a token booth clerk (back in the days of tokens). She was charged with misdemeanor assault in the third degree. The Government was not exactly thrilled with its case, and so was willing to offer my client an ACD, as long as my client agreed to pay about $700 in medical bills for the complaining witness. My client was willing to do this, if only for economic reasons that trial would have been more expensive. Once she understood that the ACD was NOT an admission of guilt, she was willing to make the economic choice to pay $700 in medical bills to the complaining witness as opposed to paying a more substantial trial fee to me. Perfectly reasonable.
The problem, however, came from her employment. MTA told her that if she paid restitution, they would consider that an admission of guilt on her part, regardless of what the Criminal Justice System thought and that she would be fired.
Therefore, my client made the determination to go to trial. Fortunately for her, we were successful at trial.
But this situation highlights the need for a lawyer and thoughtful legal analysis, even in the seemingly "simple" situation where you are being offered an ACD.
As a general rule, an ACD is a wonderful result that can be obtained in some cases by negotiation for people accused of misdemeanors who have no criminal history. But there are circumstances where a more careful analysis is called for and those accused of misdemeanors who are considering ACDs should consult with a lawyer they trust.
Worst Case Scenario with an ACD
So what happens if you don't stay out trouble for the ACD period? Do you go directly to jail? NO! You never plead guilty to anything, therefore, you can't be sent to jail. Before anything bad could happen to you, you would have to plead guilty to something or be found guilty after trial.
Therefore, if your ACD were to be "restored" then your case would simply be added back to the Criminal Court calendar and prosecution would pick up right where it left off. You could still do pretrial hearings. You could still go to trial. You would still have all your defenses. You could still win trial.
Here is a little practical reality about ACD'd cases in the New York City Criminal Justice system that is probably different from the way things are outside of New York City: In New York City, the system really really hates to restore ACDs to the calendar. Although the Government would technically have the right to restore an ACD to the calendar upon your rearrest for something new, the reality is that the Government only does this extremely extremely rarely. Instead of restoring the ACD case to the calendar, often the Government will simply take the existence of the ACDd case into account in deciding how or whether to negotiate the new case. A person with an open ACD case may not fare as well in negotiations of a new case, but it is extremely unlikely the ACDd case will be restored and separately prosecuted. Therefore, in New York City, once a case is ACD'd, it is for all intents and purposes dead in the water at that moment, even though the dismissal and sealing is six months off (a year for a marijuana ACD).
ACD - THE HOLY GRAIL RESULT IN NYC CRIMINAL COURT
The Adjournment in Contemplation of Dismissal (ACD or ACOD) is nothing short of the "Holy Grail" of resolutions in New York City Criminal Courts. As with most things, however, it isn't always that simple, and there are circumstances that might make an ACD not ideal for everyone in all cases. The article on this page, written by Don Murray, partner in the New York City criminal defense law firm Shalley and Murray, should shed some light on this "holiest" of criminal court resolutions.
exClusively criminal defense since 1996
Don Murray, pictured above, is the author of this article, and has been practicing criminal defense exclusively in New York City for more than 27 years. Schedule a free consultation about any criminal matter in New York City.
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