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Immigration Consequences of New York’s ACD program

| Apr 7, 2014 | Criminal Law & Municipal Court

People who charged with minor crimes in New York are sometimes offered an alternative disposition called an Adjournment in Contemplation of Dismissal (“ACD”). This type of offer generally arises when the crime is charged is a misdemeanor and the defendant has no prior record. In essence, the case is put on hold or suspended “before entry of a plea of guilty thereto or commencement of a trial thereof.” After the specified period of time, usually six months, as long as all conditions have been fulfilled, the charge(s) against the defendant are dismissed.

For individuals who are not US Citizens, this particular disposition may be of enormous utility in avoiding adverse immigration consequences. Of course, any foreign national charged with a crime should be consulting with an immigration attorney to receive a detailed evaluation of the immigration consequences. However, if it is an option, an ACD should be discussed with your immigration attorney because it does not normally involve a plea of guilt.

Under New York law:

The granting of an adjournment in contemplation of dismissal shall not be deemed to be a conviction or an admission of guilt. 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.

The interplay with immigration law arises when determining what constitutes a “conviction.” Under the Immigration and Nationality Act (INA) Section 101(a)(48)(A), a conviction occurs when 1) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and 2) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed. While some programs similar to New York’s ACD require a client to enter a guilty plea prior to entry into the program, as happens occasionally with New Jersey’s Pre Trial Intervention Program (PTI), New York’s ACD arguably does not constitute any type of conviction since no finding, plea, or admission of guilt is taken. The ACD may therefore provide a safety net to foreign nationals charged with crimes in New York. Again, every case is fact and circumstance specific, so individuals are strongly advised to consult with both a criminal defense and immigration attorney.

One thing to bear in mind is that during the time in which the case is held in abeyance, the defendant must stay out of trouble and adhere to all specified conditions of the program. Should there be any violations, the charges are restored and criminal prosecution may resume against the individual. The charge or charges are not formally dismissed by the court unless and until the probationary period is over.

We hope that you have enjoyed this article and learned at least one new thing or tip that you may not have known. To keep informed about the latest developments in immigration law, please subscribe to our blog feed by clicking on the “Subscribe To This Blog’s Feed” button on the right. It is important to understand that the above is only general information and not legal advice. The law is extremely fact and circumstance sensitive. For an individual legal analysis of your specific legal case, please complete the “Case Evaluation” box to the right of the screen to get in touch with one of our attorneys.

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