Clear Here Isn’t Clear There

The Supreme Court decision in Padilla v. Kentucky has generated plenty of heat, but this post by WindyPundit generates a bit of light on the why a burden, that may appear fairly simple from both a distance as well as very close up, doesn’t always play out so easily.

Windy tells the story, via the New York Times, of 28 year old nurse, Jerry Lemaine, who left Haiti at 3

ELMONT, N.Y. — When a police officer in this Long Island suburb found a marijuana cigarette in Jerry Lemaine’s pocket one night in January 2007, a Legal Aid lawyer counseled him to plead guilty. Under state statutes, the penalty was only a $100 fine, and though Mr. Lemaine had been caught with a small amount of marijuana years earlier as a teenager, that case had been dismissed.

The article goes on to discuss how a split between the federal circuits, some holding that two drugs cases of any sort “equals” one aggravated felony mandating removal, put Lemaine into immigration clutches, where he was spirited away to Texas, under the auspices of the 5th Circuit, a jurisdiction that would deport him when the 2d Circuit in New York wouldn’t.

The underlying problem was the combination of Lemaine’s teenage marijuana arrest, which the article describes as “dismissed”, combined with his simple possession in January, 2007.  While the article lacks the level of detail that would enable a hard legal analysis, it provides enough to venture some educated guesses about what happened.

While the teenage pot case is described as having been dismissed in the first paragraph, it’s later described as a conviction. It can’t be both, but it can, as Windy surmises, be an adjournment in contemplation of dismissal (called an ACD in most places in New York, an ACOD on Long Island, just because the locals prefer to call it that).  The underlying charge of unlawful possession of marihuana (another New York quirk is the odd spelling of marijuana), in violation of New York Penal Law 221.05, is a “violation”,  defined as an offense that is neither a misdemeanor nor a felony.  There is nothing lower than a violation, and it is not a “crime” as defined by New York law.

While an ACD is a fine disposition as far as local law is concerned, requiring the defendant to stay out of trouble for 6 months (or 1 year in the case of drugs), after which the case is dismissed and sealed, it is not a disposition “in favor of the accused,” a characterization that makes sure that the defendant can’t turn around and sue for the arrest or prosecution.  The defendant does not plead guilty, but rather the prosecution moves for the ACD and the defendant does not object.  An ACD is purely a gift from the prosecution; the defendant cannot otherwise get such a disposition.

There’s one additional quirk to consider, that a dismissal, under New York law, gives rise to a legal fiction that the arrest and prosecution never happened.  While it may remain on the defendant rap sheet, ironically noting that it’s dismissed and sealed but still there, it may also magically disappear as if it never happened.  From Criminal Procedure Law §215.40:

Upon dismissal of an action, the arrest and prosecution shall be deemed a nullity, and defendant shall be restored to the status he or she occupied before his or her arrest and prosecution. All papers and records relating to an action that has been dismissed pursuant to this section shall be subject to the sealing provisions of section 160.50 of this chapter.

A defendant can accurately state, upon dismissal, that he’s never been arrested, though he obviously has.  It’s one of the few legal fictions that inure to a defendant’s benefit.

Cut to age 28 and Lemaine gets popped for another unlawful possession, this time with $100 fine. Again, not a crime, but also not an ACD.  Definitely a conviction, but legally not a conviction of a crime.  Moreover, this is Lemaine’s first conviction since the prior arrest resulted in an ACD, which resulted in a dismissal, which resulted in the arrest and prosection being deemed a nullity.

The bottom line is that in New York, Jerry Lemaine’s life of crime was slightly less significant than a guy with a couple of speeding tickets.  For a sense of the price he paid given the things ICE does to protect us from non-citizens like Jerry, read Windy’s post and the article.  Three years in immigration jail, near starvation and on a handful of blankets to be shared by 50 people in the cell.  That, of course, happened in Texas.

Calls come in with some regularity from lawyers in other jurisdictions about their clients who had a case in New York.  They want to know what it means, what’s an ACD is a big question.  What type of offense is unlawful possession of marihauna?  The problem is that prosecutions and cops in other jurisdictions work off of a NCIC rap sheet, It’s maintained by the FBI and is intended as a cross-jurisdictional source of criminal history.

The problem with NCIC is that it’s notoriously wrong.  Bad information goes in and never comes out.  Nor does the good stuff, like a case being dismissed, manage find its way into the report.  And of course, it offers no explanation as to the meaning of its contents, so that it’s thrown in the face of a defendant, defense counsel and a judge in some faraway place, to be interpreted in a vacuum and left to the participants, unaware of what they are looking at or dealing with, to dispute.  As everyone knows, you can’t cross-examine a piece of paper, so the NCIC wins.  At least for the moment.

The penal schemes of different states vary widely.  The New York scheme, to the extent described here, is somewhat complicated and sufficiently strange so that it doesn’t strike outsiders as obvious or intuitive.  When it conflicts (and it often does) with their own interpretation of law, other jurisdictions tend to throw out those parts of the New York scheme that don’t conform to their way of doing things.  Like the “violation” denomination, the dismissal and nullity aspects, all vital components of the New York scheme but either ignored or rejected by courts in other states trying to make sense of a defendant’s prior criminal history through the prism of their scheme.

And one of the grandest ironies is that, in Jerry Lemaine’s case, his lawyer tried to go back into court to get the case dismissed outright, but was rebuffed because the case, as far as New York was concerned, was already dismissed so the court had no jurisdiction to dismiss it twice. 

The lawyers who defended Jerry Lemaine did their jobs, or certainly did nothing wrong.  Yet it ended up in unforeseen disaster for Lemaine because ICE decided to take him to Texas.  What were they to tell Lemaine about the immigration consequences of his case, his ACD and his plea, which in the 5th Circuit meant that two speeding tickets equal an aggravated felony?

Even if the lawyers could predict the future accurately, cover every jurisdictional quirk across the country, and, ultimately, leave their client in a state of confusion based on the variety of possibilities arising from the potential understanding/misunderstanding of New York law, would it have added to Jerry Lemaine’s intelligent decision making or just confused the heck out of him?  It’s just not that simple.  Few things are.

3 comments on “Clear Here Isn’t Clear There

  1. Windypundit

    Thanks for writing about this, Scott. It’s always interesting to see your somewhat more informed take on the stuff that aggravates me.

  2. SHG

    I thought you expressed the basis for outrage quite well.  I’m just adding a little technical detail to the bones.

  3. Pingback: Too Great Expectations | Simple Justice

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