The First Department Appellate Division last week dismissed an attempt by protesters to prevent judges from unsealing prior Adjournment in Contemplation of Dismissals (ACDs) and using them for sentencing on a current offense. The decision is a major setback for the hundreds of Republican National Convention (RNC) arrestees who may have accepted an ACD on some prior civil disobedience.
Bruce Bentley of the National Lawyers Guild New York City Chapter said, “Criminal Procedure Law Section 160.60 clearly states that following a dismissal of charges ‘the arrest and prosecution shall be
deemed a nullity and the accused shall be restored, in contemplation of law, to the status he occupied before the arrest and prosecution.’ For the trial judge to consider such a ‘nullity’ at sentencing not only defies logic, it violates the law.”
In essence, by permitting a sealed ACD to be considered in sentencing on a new offense, the judge is depriving the protester of the benefit of his or her bargain. Judge John Cataldo, the same judge who recently held New York City in contempt for holding RNC arrestees more than 24 hours without charge, opened the door to this problem when he granted a prosecutor’s request to unseal prior ACDs against four activists who blocked Fifth Avenue on March 26, 2003, to protest the Israeli occupation of Palestinian territories and the invasion of Iraq.
The four had prior ACDs that expired by their own terms when they lived out the six months without further arrest. Their lawyer, Stephen Edwards, sought a special writ from the Appellate Division while trial was pending, in order to prevent the judge from using the expired ACDs against them while determining their sentences for the March 2003 arrests.
Unfortunately, the Appellate Division did not grasp that ordering the sentencing judge to ignore the old ACDs was the only effective way to ensure the protesters would not be doubly punished. Instead, the appeals court told the protesters they could make their arguments on appeal, after punishment had been imposed. The problem with this approach, as Edwards anticipated, is that it will be impossible for an appeals judge to know how much the prior ACDs affected the new sentence. The protesters’ lawyers now hope to take the issue to the highest state court, the Court of Appeals in Albany. Unless that court is willing to grant some emergency relief, sentencing of the four will take place on Nov. 18 at 9:30 a.m., at New York City Criminal Court, 100 Centre Street, Manhattan, Arraignment Part 4 (4th Floor). These circumstances would cause any defendant who considers accepting an ACD to question whether the prosecution’s promises will be kept.
According to Yeshiva University graduate student and defendant Kate Barnhart, “The DA’s dredging up of dismissed cases as a basis to impose jail time is an unprecedented measure meant to deter political speech. Since when does a dismissed case mean that you’re guilty?”