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]