Andrew Bluestone at New York Attorney Malpractice Blog alerts us to a new law that expressly defines the impact of two often misunderstood dispositions in criminal law, an ACD and YO treatment.  Questions often arise when someone is filling out an application for a job or license, or worse yet, when an employer or licensing agency runs a criminal history check on an applicant.

An ACD, or adjournment in contemplation of dismissal (on Long Island, it’s called an ACOD for reasons that can only be explained by businesses that make extra money every time a pointless “O” is used) is a disposition where a case is adjourned for a period of 6 months (1 year in drug cases) to give the defendant an opportunity to show that he or she really isn’t such a bad sort.  If nothing happens in that period, the case is then dismissed.  As a practical matter, rarely does an ACD come back to bite someone in the butt even if they do get in trouble again, with the new case being prosecuted and the old case forgotten.

YO is youthful offender treatment, where a judge decides to treat a defendant between the ages of 16 and 19 as a youth, and the record of conviction is sealed.  There are criteria for youthful offender treatment in CPL 720.10, and the purpose is to allow a youth to make a mistake without carrying the stigma of a criminal conviction around for the rest of his or her life.

The new law, effective November 1st, precludes use of an ACD or YO for any purpose except an application to carry a handgun or to be a police officer (kinda Alice’s Restaurant-like).  In other words, if someone received either an ACD or YO, they can state with complete certainty that they have NOT been convicted of a crime on any application going forward, and the fact that this may be factually (as opposed to legally) untrue is a legal nullity.

This new law really is a restatement of the existing law, but one that makes sense since there has been confusion in the past.  It had always been the law that dismissal of a case resulted in the legal nullity that the arrest and subsequent prosecution never happened.  But the distinction between legal nullity and factual occurrence confused many, and led to the unintended consequence of people who acted upon the belief that they were safe were dinged by employers (who didn’t realize that an ACD is a dismissal, or what the consequence of dismissal was) who believed that the applicant was lying.

Ironically, both the ACD and YO should never come into play in such decision making in the first place because of sealing provisions in the law.  When you get a rap sheet, it should not include anything about either the ACD or Yo since the former is dismissed and the latter is sealed.  Somehow, rap sheets often contain information they shouldn’t, or information that is false or incomplete (like it shows the arrest but no disposition).

So what does this all mean for the person who screwed up but received an ACD or YO disposition?  Well, it clarifies the right to not have it used against him or her, but if it still shows up when you’re being checked, you’re still going to suffer the stigma of a criminal conviction.  In other words, while lawyers may understand and appreciate the significance of the law, it’s hard to imagine that a potential employer who learns (even though he shouldn’t) of your conviction is going to be able to completely ignore it from the hiring decision.

On the other hand, if it comes about after hiring, it will no longer be a proper basis for termination, and will not constitute lying on an application, which is often deemed a more serious offense that whatever crime was committed.  The best solution would be for the State to put safeguards into place to assure that rap sheets were completely accurate, and that bad stuff that should not appear was removed timely and forever.  But it’s a lot easier for New York to pass a law directed towards others than to clean up its own act.  Hey, it’s better than nothing and does no particular harm.