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2nd Amendment and Right to Bear Arms/Affect of Adjournment in Contemplation of Dismissal on Gun Rights?


1) Does receiving an Adjournment in Contemplation of Dismissal (CPL 170.55) for a “Misdemeanor Crime of Domestic Violence” activate a Firearms Prohibition under 18 U.S.C. 921 or 922, or any other applicable Federal Law?

2) Who decides what is a “Conviction” for these purposes? The State in which the case occurred or the Federal Government?

3) Is their any Statutory restrictions in the State of New York that prevent those who have received an Adjournment in Contemplation of Dismissal from legally possessing Firearms or Ammunition?

You are asking about an ADJOURNMENT in contemplation of DISMISSAL. Notice the highlighted words. Proceedings on 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, and therefore does not implicate prohibitions that turn on a conviction -- either state or federal.

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 or the New York Penal Law. 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.

This topic has been discussed at length on AllExperts, including how an ACD could affect an application for a New York pistol license. Please do a search on this site for more information on the topic.


§ 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]

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Robert P. Firriolo


General constitutional (Second Amendment) and federal firearm law inquiries. New York State and New York City laws and regulations on firearms. Use of force in self-defense. DISCLAIMER: While this site is called AllExperts and this field is captioned "Expertise," this individual is not holding himself out as an "expert" in any legal area of practice. Some jurisdictions require certain qualifications and/or certifications in order to use the label "expert" in connection with a law practice. Participation in this online service is not intended to state or imply "expert" qualifications in any jurisdiction.


Practicing firearms law attorney, including representation of individuals, gun clubs, sportsmen's organizations, shooting ranges, and businesses. Over 20 years of grassroots activism, including involvement in campaigns and elections; writing and editing articles, letters, press-releases, policy papers, and op-ed columns; interaction with firearm regulatory agencies; former board member and current legal advisor to the board of sportsmen's and firearm civil rights organizations; pro-bono counsel on select firearms-related legal cases; debated leaders of the gun-control lobby on national television. Lecturer on lawful use of deadly physical force and crime prevention.

Attorney at law. Extensive practice, independent study and research in this field. NRA-certified firearms instructor (rifle, pistol, shotgun, home firearm safety, personal protection) and Chief Range Safety Officer.

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Martindale-Hubbell "AV" Peer-Review Rating.

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