Expert: Robert P. Firriolo - 3/31/2011

Question
QUESTION: Are recieving ACDs (Adjournment in contemplation of dismissals) for felony or domestic violence charges considered convictions under federal law as applied to the federal gun control act?

ANSWER: Assuming you are asking about New York law, an ACD is exactly what it says: an ADJOURNMENT in contemplation of DISMISSAL. The charges are adjourned before trial or guilty plea with the expectation that they will be dismissed after a period of time (6 months to a year). This is spelled out in Criminal Procedure Law § 170.55 (relevant portions reproduced below). By its very nature, a "dismissal" cannot be a conviction.

Of particular note is CPL § 170.55(8), which states: "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 the defendant shall be restored, in contemplation of law, to the status he occupied before his arrest and prosecution."

Clearly, then, a dismissal via ACD is not a conviction under NY state law, and thus it is not considered a conviction for purposes of the federal Gun Control Act. Moreover, the CPL explicitly states that even the arrest is nullified and all rights are restored to where they were before the arrest and prosecution. Thus, even the prohibition under federal law for transfer of a firearm while under indictment is specifically lifted by the dismissal pursuant to an ACD.



§ 170.55 Adjournment in contemplation of dismissal.
   1.  Upon  or  after  arraignment  in  a  local  criminal court upon an
 information, a simplified information, a prosecutor's information  or  a
 misdemeanor  complaint,  and before entry of a plea of guilty thereto or
 commencement of a trial thereof, the  court  may,  upon  motion  of  the
 people or the defendant and with the consent of the other party, or upon
 the  court's  own  motion  with  the  consent of both the people and the
 defendant, order that the  action  be  "adjourned  in  contemplation  of
 dismissal," as prescribed in subdivision two.
   2.  An  adjournment in contemplation of dismissal is an adjournment of
 the action without date ordered with a view to ultimate dismissal of the
 accusatory instrument in furtherance of justice. Upon  issuing  such  an
 order,  the  court  must  release the defendant on his own recognizance.
 Upon application of the people, made at  any  time  not  more  than  six
 months, or in the case of a family offense as defined in subdivision one
 of  section 530.11 of this chapter, one year, after the issuance of such
 order,  the  court  may  restore  the  case  to  the  calendar  upon   a
 determination  that  dismissal of the accusatory instrument would not be
 in furtherance of justice, and the action must thereupon proceed. If the
 case is not so restored within such six months or one year  period,  the
 accusatory  instrument  is,  at the expiration of such period, deemed to
 have been dismissed by the court in furtherance of justice.

[sections 3-8 omitted]

---------- FOLLOW-UP ----------

QUESTION: Would any charge dismissed via an ACD under NYS law be considered a disqualifier for firearms possession? In other words, could there be any firearm restrictions attached if charged with certain offenses regardless of being granted an ACD?

Answer
The answer to your first question is easy. There are no statutory disqualifiers in NYS law for firearm possession for charges dismissed via an ACD. As made clear above, an ACD is a dismissal and a dismissal of charges that specifically states that it does not restrict legal rights.

However, your second question is actually somewhat different and there is no simple answer. A license officer could deny a license application, or restrict the license if granted, based on the fact of an arrest alone. For example, in the City, NYPD may well deny a license application based just on one or more arrests, even if the charges were dismissed, because in their view the person is not of "good moral character."

So yes, there "could" be firearm restrictions -- administrative license restrictions, or denial of a license application -- based on an arrest even without a conviction. Whether the arrest is deemed significant, and how significant, is solely in the discretion of the licensing officer.