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Got part of another case resolved tonight. Client was charged with UPM (unlawful possession of marijuana). Criminal Procedure Law section 170.56 provides for dismissal or ACOD (adjourned in contemplation of dismissal) for UPM and the two misdemeanor marijuana charges, if it's a first-time marijuana offense. Defendant has to move for it, and the DA's consent is not required.
When I first appeared on this case, the ADA wanted my client to do 20 hours of community service. Sometimes DAs make up their own laws. This is not the ADA's fault. We have a new DA in Albany County, and this is part of his agenda. It's quite disturbing because he ran on a drug policy reform platform, and now he is giving the worst deals on minor marijuana offenses. No other county DA in the area seeks community service on a UPM.
So when that happened, I made a "letter motion" (I sent a letter and said "Judge, I move for ...") for dismissal under 170.56. I appeared in Court tonight and the ADA still insisted on community service.
We approached and discussed with the judge. In this case it helped that my client already volunteers extensively doing something very nice and noble. The ADA initially told the judge that he did not have the authority without her consent. I disagreed. We took a break while she looked it up. We went back in front of the judge and she admitted I was right. Yes, that does something for the male ego. :-)
So the judge granted my motion, and because of NY law regarding UPM and this dismissal, it's as if it never happened. My client was never arrested, under New York law.
I should mention that I've never had a problem with this ADA before, and we had done deals on UPMs before the new DA, and there was no problem then. While I am often critical of prosecutors, I do respect this particular ADA even if I disagreed with her on this case.
Thursday, February 02, 2006
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44 comments:
In the case that someone was put on acod for upm, and they got caught with someone elses paraphernalia in someone elses car once again after that, will they be able to request community service or probation?
or is there another punishment
Responding to Anonymous, this sounds like a question you should ask of your lawyer. Good luck.
Hi! I was reading your blog ... I was charged with a traffic violation re pot possession and DUI which was reduced to a traffic violation as my BAC was .07. I have done 40 hrs. community service, taken a DDP class, paid fines, etc. I want to know if I can have the arrest and all related wiped clean from my "record" as I work in Insurance and it is really a problem as most companies run a background check, etc. This instance was my first and only incident. Thanks, CC
I often get calls from people asking how to expunge a conviction from their record, or otherwise wipe their record clean.
I have NOT researched this thoroughly. The first time I was asked, I looked into it briefly and concluded that it can't be done.
The only way I know of to keep your record clean is to fight the charges against you and either win. Along the way you might get a reduction that you don't mind having on your record.
This is just my opinion. There may be attorneys out there who think it can be done.
I have one confussion that I am trying to clarify. I was charged for Assault 3 although I was the one called 911 and asking for help. After two court apperance, I was offered and accepted ACOD since the ADA said that she heard the 911 and confused about who is quilty. I was filling some employment appliction forms asking for acceptance of Pre Trial Intervention (PTI) as criminal records:
1) is ACOD PTI.
2) If it is and I am required to disclose where is the benefit of arrest and charge nullity under ACOD?
Can you please clarify?
First thing's first -- you should discuss this with the lawyer who represented you then, or talk to a lawyer now. Maybe you should find a lawyer near you who does both criminal law and employment law.
I've never heard of PTI, and it doesn't sound like an ACOD fits in that description.
My understanding of an ACOD is that, once the period of adjournment runs, the case is dismissed and should be wiped clean from the records. It's as if you were never arrested. I've seen cases that say this for marijuana ACODs, and I know of no reason why it would be different for other ACODs.
I generally advise my clients that, after an ACOD, you can answer "No" to the question "Have you ever been arrested". This assumes, of course, that they have no other criminal history.
Again, for your specific case, you should sit down and discuss this with a lawyer.
I was recently charged with a UPM and thats it. I was wondering how to go about getting a ACOD?
How do you get an ACOD? Um ... maybe you should hire a lawyer?
Hi, I recently got charged with UPM. I went to court and receieved an ACOD for a 6 month period. Just yesterday, I got a ticket for Disorderly Conduct. Will this affect the ACOD for the UPM Charge? or does that ACOD only get affected by another possesion charge? Thanks.
In theory at least, any new charge against you can open up your ACOD. I've never seen it actually happen though. You should discuss this with the lawyer who rep'd you on the ACOD.
Hi, I was arrested and charged for a class A misdemeanor in NY. And later given an ACOD. I am an accounting major and will be applying for jobs at financial firms, most of them require fingerprinting as part of the background check process, now my question is whether they will be able to see my arrest record after my case is dismissed through the FBI or other background checks, do they have access to sealed records and to arrest records that did not result in a conviction? I've read somewhere that financial firms have access to applicants rap sheets, does that mean they have access to sealed records? After ACOD is my arrest record and all the other records automatically sealed or do i have to request that after the case is dismissed? And what should i answer on the arrest and "have you even been charged of a crime" questions on the employment applications.
Thank you in advance
Will a marijuana ACOD show on a background check. Under NY law it never happened. But records are not always sealed properly. Talk to the lawyer who got you the ACOD.
Hi I was charged with criminal possession of a controlled substance 7th in NY. I was wondering if it is possible to receive an ACOD for misdemeanors that are non-marijuana related.
I am a student and much of my tuition is paid with federal loans. Is there any way to prevent this from appearing on my criminal record (as federal law states that any drug offenses, including violations, make you ineligible for federal student aid).
Yes, it is "possible" to get an ACOD, but not under 170.56. The general ACOD statute is 170.55. You should hire a lawyer to help with this. --Warren
hi, i was arrested for shoplifting, which was a honest mistake but security guard made it sure to make it as a real shoplifting case because of language barrier and add lot more stuff , was embarssed to be in sitaution, did n't know the consequences, accept the acd. meantime got arrested again at the job for pending investigation. case is in federal court, they havn't found anything but since i had an acd tehy reopen the case and insisted state prosecutor to have me admit ofr stealing and violation which they federal prosecutor cud use againt me in the federal court, confused at this stage of my bad luck,. what is the best i could do to resolve my both state and ferderal court issues, please help me
Sounds like our last commenter should hire a lawyer.
I am a junior in college and was recently charged with Unlawful Possession of Marijuana during a traffic stop on the thruway near Utica. My friend was driving and given a speeding ticket. The state trooper noticed beer in the back end of the car (no open containers)and then searched our bags and backpacks. It was then that the marijuana (well under 2 grams) was discovered in my backpack. I admitted that it was mine. As a student I cannot afford to lose my federal financial aid, my college career would be over. I also cannot afford to hire a lawyer. Should I contact the public defenders office, the town justice and/or the DA for that county, in which I am scheduled to appear, admit my guilt, express my sincere remorse and plead for leniency? If not, what should I do when I appear in court? Should I ask the judge to appoint a lawyer for me, what do I say when he asks me how I plead? I am totally confused and don't know what to do. If I could possibly borrow money for an attorney what would that cost, estimated? Any advice would be greatly appreciated. I thank you for your time.
Responding to the last question by anonymous:
1. UPM is a violation. As far as I know, you can't get a public defender for a violation. But it doesn't hurt to ask.
2. In my admittedly biased opinion, you can't afford not to hire a lawyer. We charge $1000 for a case like that. If you don't hire a lawyer, you might do fine, or you might end up ineligible for financial aid. That will cost you a lot more than $1000 over the long run, right?
i came across your blog while researching about ACODs and UPM. i've recently been charged with upm, and also recieved a ticket at the same time for possesion of alcohol in a prohibited area. i'm not of legal drinking age, and havent been to the court date yet. both hearings are on the same date, the marijuana early in the morning, alcohol a bit later in the afternoon. i have never been to court for anything except for 2 speeding tickets and a seatbelt violation. my question is, what do you think my chance of getting an ACOD is? will the alcohol ticket have any impact on that? about how much money do you think the tickets would come to? thank you very much for your help in advance.
I suggest you hire a lawyer to go over this.
Hi, I was recently charged with upm and only upm (221.05). I can not afford to hire a lawyer and I understand that I have no right to a public defender as it is only a violation. I was wondering if I could get an acod on my own. When the judge asks for my plea I plan to respond: "Not guilty, your honor, and I believe this case qualifies for an adjournment in contemplation of dismissal under section 170, sub setction 56 of the criminal procedure law." Should that get me the adjournment? (I don't mind if the judge tries to tact on community service, I just want my record clean so I will still be eligible for financial aid.) And if not can I ask for a public defender on the basis that section 221.05 of the penal law states that there is possible jail time for unlawful possesion of marihuana. I know I can't get jail time because it was a first offense but it is in the sub section.
Also, I'm not sure if this matters but here's how it went down. I had smoked in my dorm room, the cops were called. When they came they could smell it (I was no longer smoking). They asked if I had any more, I said yes and got it out of my drawer and gave it to them. I was very honest and I know the officer was nicer to me because of it. He still gave me a ticket but he told me not to worry to much about it as it is the same as a speeding ticket.
Sorry for the long winded post but I wanted to give you as much info as possible.
"I can't afford a lawyer"
You're spending thousands on school and probably hundreds on pot. You can afford a lawyer. You don't want to spend money on a lawyer and you will have to live with that choice.
My school is paid for by loans and I happened to spend 40 dollars on pot. It was just supposed to help me relax after finals.
Anyways, you didn't answer any of my questions. :(
say you got only a upm in the capital district and have no need for financial aid. How would one benefit from an ACOD?
There's no fine for an ACOD and the case gets sealed. Sealing means, under NY law, you were never arrested. Of course you may not have been arrested anyway - they often just give you a ticket. But the case is mostly wiped from your criminal history. The police and the feds can probably still see it, but others won't.
I was granted an ACD for a non drug related offense, unauthorized use of a motor vehicle. Should "however, that the court may not order such adjournment in contemplation of dismissal or dismiss the accusatory instrument if: (a) the defendant has previously been granted such adjournment in contemplation of dismissal" in section 170 subsection 56 be interpreted to mean that i cannot recieve an ACD for my UPM charge under section 221 subsection 05?
In my opinion your previous ACOD is not a problem because it was under 170.55 not 170.56. But I've met prosecutors and judges who might disagree.
Thank you very much for your swift response - I really appreciate that.
Hey! good blog you've got here. i was arrested for a upm and was given my court citation. i have court on the 21st i am 18 and not entirely certain i want to inform my parents. if i go to court and have a lawyer appointed for me do you think that an ACOD will still be a possibility? i had less than .5 of a gram on me at the time and had not been smoking. any advice you can give?
In NY, you normally cannot get a lawyer appointed for a UPM. In general I think young people should discuss any court matters with their parents. Hiding something like this from your parents doesn't seem like a good idea.
i went to court today and an ACOD for upm in the town of brunswick. No fines were issued or another peanlties, no community service or anything. I think i got off pretty good due to the fact that within a year my slate will be clean.
Im a graduated senior in highschool and i just got a upm the other day while with my friend. I am just a little nervous as to if my finacial aid is going to be affected. Ive heard that you must be recieving the finacial aid for this to apply and i have not yet attended my college. Although I have submitted my FAFSA paperwork and been approved. I also have not one blemish on my record as this is my first offense. I am really only concerned with the loss of my financial aid. The fines and record are my legitmate punishment and i can deal with that. If i pay the fine and dont get an ajournment in contemplation of dismissal will my financial aid be revoked?
The answer to graduated senior's question is "maybe." I'm not a financial aid expert, and you should check with one - maybe two. :-)
Regardless of financial aid, it is a good idea to get an ACOD if you can. Under NY law, an ACOD means you were never arrested.
I appreciate your time ill look into that. I know an ACOD is NOT a conviction so if i can attain that im sure my aid will be unaffected.
This may help. In 2007 I was charged with Felony possesion of marijuana and growing of the plant known as cannibus (75, 6ft plants) I also had been questioned by the FBI.All the while I was going through court proceedings and sentencing I applied for and recieved my passport,and recieved a job selling Insurance. I had to have an FBI background check for both. This is not the first ACD I have recieved but it was the first drug offense for me. I have had numerous background checks and have came through all of them clean. I am now trying to obtain my massage therapist licsense. I recieved an ACD for one year. That year is almost up. Since that year is not up, I disclosed that on the application. Be honest yes! but don't play cop,you don't have to disclose that information if you were granted the ACD, only if it's still pending should you. Cheese and crackers I had two background checks while my case was still pending and nothing came up.
This is rite from the Law Library online " Any arrest which is not pending or did not result in a conviction is not considered an arrest according to New York criminal laws. N.Y. Exucutive Law Section 296, subdivision 16, prohibits such question with limited exeptions, for example on applications to become a police officer. A file that has been sealed also allows the applicant to answer no. New York criminal procedure law section 160.50 which requires the sealing states that when a criminal action terminates in a persons favor all records shall be sealed and not made available to any person. An ACD is a form of dismissal of charges and is not a conviction PERIOD. I have also had been granted "Secret Clearence" by the military while having had an ACD back during the first Gulf War and it still came back clean. I have had an ACD pending in a different town while having another case in another town and it was never discovered. My bet is that you are safe. I have researched this over and over again and through my own personal experience my record has always come back clean. I have also recieved student loans, obviously.
But if you want to be on the safe side from now on just dont get in anymore trouble and you save yourself some sleepless nights. Getting a high priced attorny does'nt hurt either ;)
Very cool blog you have here.
I am not a student and have no plans in my future for any more higher education. I never previously have been arrested until last week when I got a UPM and only a UPM. What do you think about paying the $100 for the violation and saving the 170.56 ACOD for a rainy day in case I am ever pinched with an ounce or more? Then it gets me out of a criminal conviction, right?
No, that is not a good strategy. You can't "save" the ACOD for a rainy day. Once you get convicted of a marijuana (or other drug) offense, you are no longer eligible for the ACOD.
I am a criminal defense troa; attorney for many years now. I recently became aware of the risk of losing federal financial aid for taking an ACOD (sometimes called an ACD --especially in NYC boroughs & in Suffolk County). Can you tell me what the Federal Regulation is or what exactly can hinder a Defts. eligability to receive financial aid?
For Frank, there's a "worksheet" on this:
http://www.fafsa.ed.gov/FOTWWebApp/fotw0809/WorksheetServlet?locale=en_US&wstype=Q31
Hi, I was wondering, I was arrested and received an ACD, the time was for a year and it has now past, I can still see my name on the Webcrims on eCourts for NY. I am trying to take the CPA, there is a question that states, "Have you ever been found guilty after trial, or plead guilty, no contest, or nolo contendere to a crime (felony or misdemeanor) in any court?" I understand I am not convicted, but i remember that day i was in court when i was issued the ACD, my defense attorney said i was pleading guilty, so what should i state in my application? and they said i should attach any court records even such as a "certificate of good conduct" if i answered yes to the above question, i am just scared and confused...i have worked so hard for this and this one ACD mistake has brought me down constantly...:(
You should check with the attorney who represented you. It sounds like you did not get an ACD.
Well it shows up on the Webcrims as an ACD, in court the judge issued me an ACD for a year. but does it mean i have never plead guilty? when the New York law states that after I am issued my ACD and after I have not been in any trouble for a year and my case shows up as an ACD, does this really mean that I am back to the status I was before this? Back to no record at all, back to I have never plead guilty?
I'll say it again: You should check with the attorney who represented you at the time.
I received an ACOD for UPM in New York City several years ago. I need to request an FBI Identification Record because I'm obtaining a visa to work internationally. Your blog seems to indicate that, while they're sealed in New York records, the Feds may have access to ACOD incidents. What are the chances of this showing up when I request a criminal history from the FBI?
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