Voiding an Arrest in a New York Shoplifting, Weapon or Drug Case: NY CPL 170.55 & the ACD “Nullity”

Often times, prosecutors in the New York City area (Manhattan, Brooklyn, Bronx, Queens and Westchester Counties) offer first time shoplifters as well as those accused of other thefts, weapon crimes and personal drug possession, a violation of Disorderly Conduct (New York Penal Law 240.20). Depending on the facts and circumstances, a “Dis Con” could be a tremendous disposition. However, such a violation does have its draw backs. One of the most common is that a Disorderly Conduct may seal, but may show up on a background check. The other issue with a Disorderly Conduct is that while you will not have to ever state you were convicted of a crime, you technically have been arrested. Therefore, should an employer or an employment application ask whether you have ever been arrested, you will have to answer in the affirmative.

As I have written time and time again (and fought for my clients in each and every case of this nature), it is often worth one’s time to reject a Disorderly Conduct and fight for an adjournment in contemplation of dismissal or ACD. In these cases, not only is there no conviction of any kind, but the case is both dismissed and sealed in six to twelve months depending the nature of the underlying offense. Another benefit that is often not addressed is equally important.

According to New York Criminal Procedure Law section 170.55(8), when one is granted an ACD, not only does the law provide that one will not suffer any type of “disability” as a result, but the initial arrest and subsequent prosecution are considered a “nullity.” Furthermore, one is put back into the same position one was in prior to the arrest and prosecution.

Obviously, whether you are charged with New York Penal Law sections 155.25, 165.40, 265.01, 220.03 or any other crime, an ACD disposition can minimize the collateral consequences of the initial arrest. New York State law specifically sets forth a statute that deems your arrest a “nullity.” Under the eyes of New York law, your arrest did not happened and you are “restored” to your pre-arrest status.

While a technical reading of New York Criminal Procedure Law section 170.55(8) establishes the “nullity” arrest result, the practical questions for one who is the recipient of an ACD are evident. Merely because New York State says in her laws that your arrest is a nullity, does that mean in fact you were never arrested? After all, you were handcuffed and printed. If, according to New York State law, your arrest is nullified, can you assert to an employer or on an employment application that you have never been arrested? What, if anything, will federal or other state authorities know about your case and arrest? What are the consequences of relying on the statute and denying your arrest should you be asked these questions?

Certainly, having to deal with an ACD and these questions about whether you were arrested or not are far better issues to deal with in comparison to those related to criminal convictions or convictions for violations. While attorneys may differ in their responses to the 170.55 issue, it behooves you to have the “arrest conversation” with your counsel.

For related information on Desk Appearance Tickets in New York, please review NYDeskAppearanceTicket.Com

In depth information on felony and misdemeanor crimes as well as on the criminal defense attorneys and former Manhattan prosecutors at Saland Law PC, please review the Saland Law PC website. Lastly, extensive materials on criminal statutes, criminal procedures and legal decisions can be located throughout the NewYorkCriminalLawyerBlog.Com.

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