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 disposition:
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:
The first, 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.
The second, 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.