How to answer questions about convictions, arrests ACD's, and dismissals on applications.

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The following guidelines are general and will not apply in all situations.  Always consult directly with a qualified attorney



IF YOU RECEIVED AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL AND THE CASE WAS SUBSEQUENTLY DISMISSED


Question: Have you been convicted of a crime?


Answer: No. The answer “no” is based upon the ACD statute which says that an ACD “shall not be deemed a conviction or an admission of guilt.” [CPL § 170.55 (8)].


Question: Have you been arrested for a crime?


Answer: No.

 CPL §§ 170.55 (8) and 170.56 (4) provide that upon the dismissal of the accusatory instrument “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.” 


 IF YOUR CLIENT’S CASE WAS DISMISSED AND SEALED PURSUANT TO CPL § 160.50


Question: Have you been convicted of a crime?


Answer: No. Because the charge has been dismissed there has been no conviction.


Question: Have you been arrested for a crime? Answer: No. The CPL § 160.50 sealing invokes CPL § 160.60. .


IF YOU WERE CONVICTED OF A VIOLATION


Question: Have you been convicted of a crime?


Answer: No. The answer is “no” based upon the definition of “crime” found in Penal Law § 10.00 (6) which is defined as “a misdemeanor or a felony.” A conviction for a violation is neither and is therefore not a crime.


Question: Have you been convicted of an offense?


Answer: Yes. The answer is “yes” because under the Penal Law, a violation is defined as an offense. The answer is “yes” even if the violation was sealed pursuant to CPL § 160.55. This is because a CPL § 160.55 sealing does not benefit from CPL § 160.60, and thus there is nothing defining a CPL § 160.55 sealing as a “legal nullity” which one shall not “be required to disclose.”

However, Human Rights Law § 296(16) states that employment applicants shall not be required to divulge arrests that resulted in CPL § a 160.55 sealing.


IF YOU WERE CONVICTED OF A MISDEMEANOR OR A FELONY


Question: Have you ever been convicted of a crime?


Answer: Yes.


Question:Have you ever been arrested for a crime?


Answer:  Yes


IF YOU WERE ADJUDICATED A YOUTHFUL OFFENDER FOR A MISDEMEANOR OR A FELONY


Question: Have you been convicted of a crime?

Answer: No. The answer “no” to this question is based upon the Youthful Offender statute itself, CPL § 720.35. The statute provides that: 1. A youthful offender adjudication is not a judgment of conviction for a crime or any other offense… 2. Except where specifically required or permitted by statute or upon specific authorization of the court, all official records and papers whether on file with the court, a police agency or the division of criminal justice services, relating to a case involving a youth who has been adjudicated a youthful offender, are confidential…