Consider the following scenario: A young person is arrested by a police officer for disorderly conduct and resisting arrest late one Friday night, held in jail over the weekend, then arraigned on Monday before a judge and released on his own recognizance. He is charged with a violation under N.Y. Penal Law 240.20 (disorderly conduct) and a misdemeanor under N.Y. Penal Law 205.30 (resisting arrest). He denies both charges and believes he was falsely arrested and falsely imprisoned in violation of his civil rights. At his first criminal court appearance, the prosecutor offers him an "adjournment in contemplation of dismissal," commonly known as an ACD. What does this mean? How does it affect his rights? Should he accept the ACD?
What is an ACD?
An ACD is a special type of dismissal of criminal charges, set forth in N.Y. Criminal Procedure Law 170.55. It applies in misdemeanor cases, and may be entered at any time before the defendant pleads guilty or the criminal trial commences. It may be entered upon motion by the prosecutor, the defendant, or the court with the consent of both parties. An ACD "is an adjournment of the action without date ordered with a view to ultimate dismissal of the accusatory instrument in furtherance of justice." This means that the criminal proceeding against the defendant will be adjourned (suspended) for a certain period of time -- usually six months (one year for certain drug and domestic offenses) -- at the end of which, the charges against the defendant will be dismissed. The defendant is required to "keep out of trouble" during this six month period, however, otherwise the criminal charges against him may be restored by the prosecutor. (Technically, the charges may be restored if the dismissal "would not be in furtherance of justice.")
What is the effect of an ACD?
Many defendants believe that accepting an ACD means they are admitting guilt. This is not correct. An ACD is not a guilty plea or an admission of guilt. The law is clear: "The granting of an adjournment in contemplation of dismissal shall not be deemed to be a conviction or an admission of guilt." N.Y. Criminal Procedure Law 150.55(8). The law further provides: "No person shall suffer any disability or forfeiture as a result of such an order. Upon the dismissal of the accusatory instrument pursuant to this section, the arrest and prosecution shall be deemed a nullity and the defendant shall be restored, in contemplation of law, to the status he occupied before his arrest and prosecution." Furthermore, the law requires that "the record of such action or proceeding shall be sealed." N.Y. Criminal Procedure Law 160.50. In other words, an ACD means that the arrest and prosecution never happened.
Can a person who accepts an ACD sue the police for false arrest and false imprisonment?
Yes. Although some courts have stated otherwise, the weight of authoritative opinion holds that an ACD does not affect a person's right to sue the police for false arrest, false imprisonment, or excessive force. See, e.g., Hollender v. Trump Village Coop., Inc., 58 N.Y.2d 420 (1983); Singer v. Fulton County Sheriff, 63 F.3d 110 (2d Cir. 1995); Graham v. People, No. 07-CV-1690 (JG), 2009 WL 1531097 (E.D.N.Y. June 2, 2009). The only claims that an ACD defeats are claims that require the plaintiff to show that a criminal proceeding was terminated in his favor. (An ACD is not a finding of innocence; it simply wipes the slate clean.) This includes malicious prosecution. See, e.g., Daniel v. Safir, 175 F. Supp.2d 474 (E.D.N.Y. 2001). Therefore, a person who accepts an ACD can sue the police for arresting and imprisoning him, but may not sue the police for prosecuting him.
Should a defendant accept an ACD?
It depends, of course. A defendant offered an ACD should discuss the matter carefully with his attorney. From the perspective of a civil rights attorney, however, there is little downside to an ACD. First, it ends the criminal procecution quickly and efficiently, avoiding the risk of conviction and any adverse findings by the criminal court (for example, that the police had probable cause to arrest). Second, although an ACD bars a claim for malicious prosecution, as a practical matter this claim rarely adds much "value" (money damages) to a plaintiff's potential civil rights lawsuit in these cases. The plaintiff's damages primarily come from the arrest and imprisonment. These damages don't go away if the person accepts an ACD. Besides, it would be illogical to reject an ACD, which ends the criminal proceeding, in the hopes of later asserting a malicious prosecution claim against the police. Third, very importantly, a person who wants to "vindicate his rights" in court will have a much better opportunity to do so in a civil rights action than in a criminal proceeding. In a civil rights action, the plaintiff is better able to define the litigation, obtain discovery, and maneuver the case towards settlement or trial. Last but not least, money damages are only recoverable in a civil rights action. For all of these reasons, I generally advise my clients who have been charged with minor crimes to request and accept an ACD at the first opportunity.
For more information about ACDs, see here and here.