This post discusses some caselaw on the “Nullity” Concept in
Adjournment in Contemplation of Dismissal or Dismissed and Sealed Cases
in New York. An adjournment in contemplation of dismissal (“ACD”)
pursuant to Criminal Procedure Law section 170.55 is an outcome defense
attorneys commonly seek because of the very strong language contained
in the final paragraph concerning the lasting effect of that particular
8. 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 thedefendant shall
be restored, in contemplation of law, to the status he occupied before
his arrest and prosecution.
A question often arises as to what the term “nullity” means
when it comes to future questions concerning the arrest or prosecution.
Below are two cases that tend to shed some light on the question of what
must or must not be said concerning a dismissed case:
People v. Ellis, 184 A.D.2d 307 (1st Dep’t 1992), suggests that a person can freely
deny the existence of the arrest or prosecution of the case, even while
testifying under oath. In that case, the Appellate Division, First Department
held that it was proper for a person to deny the existence of an arrest
that had been dismissed and sealed pursuant to Criminal Procedure Law
section 160.60 under oath at a subsequent court proceeding concerning
an unrelated matter. Certainly, then, an argument could be made based
on this decision that a person should be entitled to deny the arrest and
conviction upon questioning under any circumstances.
In the Matter of Alonzo M. v. New York City Dep’t of Probation, 72 N.Y.2d 662 (1988), clearly states the policy behind the rule. There,
tthe Court of Appeals noted that “when an action is favorably disposed
of in an adult proceeding the records are sealed under
CPL 160.50, the arrest and prosecution are deemed a nullity, the accused is restored
to the status occupied before arrest, and unless specifically required
by statute, or directed by a superior court, the accused is not required
to divulge information regarding the favorably terminated action. This
statutory safety net protecting adults ensures that records and materials
generated from an arrest and a favorably terminated proceeding are eliminated
as facets of the accused’s criminal pedigree.” Id (citations omitted).
If you have been charged with a crime and have questions about adjournments
in contemplation of dismissals or the effect of any case that has been
dismissed and sealed, you should contact
experienced criminal defense attorneys.
adjournment in contemplation of dismissal,