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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 15932
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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Hello, why is a case considered "Open " until the ACD is finished

Customer Question

Hello, why is a case considered "Open " until the ACD is finished in 6 months? I need to speak to the DA, but they won't speak to me without an "Attorney" present! I cannot afford to hire an "Attorney" so what does one do?
Submitted: 11 months ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 11 months ago.

Hello,

I'm a NYS lawyer and can help you with this question.

An ACD stays open for 6 months because it is a conditional dismissal. The condition is that you remain law abiding for a 6-month period and follow any other instructions of the court. If you do that the court will dismiss and seal your case by operation of law and the ACD will not appear on your criminal history, nor will anyone other than law enforcement have access to it.

If you fail to keep your promise to the court and get in trouble with the law, the case will reopen and you will be back to facing the original charges.

It is the policy of the DA's Office to refuse to speak to unrepresented defendants. If you cannot afford an attorney and you still have an open court date, you can ask the judge to appoint you a public defender, and your lawyer can negotiate with the DA.

 

If you have already accepted an ACD for your offense and just want some clarification, you could just call or stop by the public defender's office. In my experience, there will be an intake person available in the public defender's office just to answer emergency questions for people who can't afford a lawyer and who have no representation.

Customer: replied 11 months ago.

My case is somewhat complicated... I filed a complaint with the police dept. of Sexual Assault against the very same person the ADA gave an order of protection to, So they could not speak to me while the case was going on.... so I thought once the case was over they would speak to me... well not so... as a matter of fact I received a letter in the mail informing me that there were inconsistencies in my complaint with the Police... and they spoke to witnesses they decided not to bring charges against the Dr. in question... now I feel they were prejudice in this case from the very beginning... and WTH "She " gets away with what "She " did to me and I get punished for it! What else can I do?

Expert:  Zoey_ JD replied 11 months ago.
Hello,

Unfortunately, if a prosecutor declines prosecution, there is nothing that you are able to do about it. There is no appeal process. The DA has complete discretion to determine which cases to prosecute and which not to. They do not take on every offense reported to them, and even the President of the United States cannot force a prosecutor to go forward with a case if the prosecutor does not wish to proceed.

Cross-complaints (which is what you would have liked to see) occur when the police come to the scene of an incident and cannot determine which of two is more culpable, so they arrest both. If the police believe they have probable cause to arrest only one of the two, that's all they will do. That's certainly what they will do if the police don't witness any part of the incident but a credible-sounding complainant comes forward to file a complaint. First to the police gets to be the complainant. The other is the defendant.

If the matter involves a different incident and different set of circumstances, the DA are sometimes willing to prosecute on behalf of a former defendant once the case against him has been resolved. If the matter involves the same incident, they won't take it on, especially if the defendant agreed to a disposition.

Once the DA says no to a prosecution your only remedy would be to sue this person in civil court, which generally means hiring a lawyer. If your case is good, you may be able to get one on contingency, meaning you only pay him if he wins your case and then he gets about 40% of your award as his salary. Or, if you have sustained monetary damages, you can bring the case to small claims court where you won't need a lawyer.

I'm sorry for not being able to tell you what you want to hear, but this is how our system works in New York State.

Customer: replied 11 months ago.

Well it "Sucks" If after 6 months and the "Hardened Criminal " behaves.... can the person who hold the order of protection... hold that over your head... by trying to bring trumped up charges again? Which is basically what they did here? Don't we the people have a say in how the system works... how does the DA get to do whatever they want?

Expert:  Zoey_ JD replied 11 months ago.

Yes, if there is an order of protection against you as a result of the ACD, you could be rearrested and your first case could reopen as well, if you violate the order of protection, which is a misdemeanor in and of itself.

Unfortunately, while most complainants won't lie to jam up a defendant on an order of protection matter, some will. Your remedy if that is what is happening to you, would be to ask the court for a public defender, if you can't afford a lawyer and fight the charges. It is the DA's responsibility to prove beyond a reasonable doubt that you violated such an order. If the complainant is lying, your lawyer can cross examine him or her on the stand and bring in other evidence that you may have, including, your own testimony if you wanted your day in court to try to establish reasonable doubt as to what really happened between you and the complainant.

We the people have a say in that we can elect -- or fail to reelect -- the DA. And we challenge our laws by lobbying for changes in legislation. No DA anywhere takes on every case that is reported to them. There are simply not enough courtrooms, judges, prosecutors or attorneys to handle that volume. The law grants the DA the complete discretion to choose among them. It is all part of the separation of powers. This is simply what his job is about.

If you have suffered actual damages as a result, the system allows you to go forward in civil court to try to get monetary compensation. It does not deny you a remedy under law, even though it may not grant you the remedy you would most be inclined to choose.

Customer: replied 11 months ago.

So am I to "Understand " that even after the 6 months and a "Clean Record" the person holding the order can still make something up and have me arrested and the case is open again? Am I missing something here?

Expert:  Zoey_ JD replied 11 months ago.

Hi,

After 6 months, the original case against you will automatically be dismissed and sealed by the system. After 6 months, it doesn't matter what happens between you and the complainant as far as the first case is concerned. That case cannot open up again.

However, for as long as the order of protection is in effect, you are bound by that order, and failing to observe its condition can get you arrested on a new case for violating the order of protection. So if the permanent order of protection runs for a year, for example, you could face new charges after the 6 month period if the police believe you have violated the order.

Customer: replied 11 months ago.


No it's just for 6 months... no return date... don't violate order or get arrested on anything else. That was my "Understanding"! But my concern is I work right across from where "She" works and I shop in the vicinity.... and I oversee 48 developments in the boro of Manhattan and and at least 6 are in the surrounding area of her work and home! So I'm concerned for my Job... and my developments!

Expert:  Zoey_ JD replied 11 months ago.
Hi,

I understand. If there's no distance specified on the order, then you should be able to go about your business so long as you don't threaten, harass, etc. the complainant. If you see her, you just walk away in another direction.

If you think she may be likely to trump up something even if you have nothing to do with her, the other alternative you'd have would be to go to court, get the case back in front of the judge and ask him to modify the order to allow you to go to work so long as you refrain from any contact with the complainant. You'd need a lawyer for best results. If you had one when you appeared in court and got the ACD that would be the best choice for one who could accomplish this for you.
Customer: replied 11 months ago.

No distance... these things use to say 100 feet or something, but this doesn't... however it so broad... I truly don't want any backlash. I just can't believe the ADA gave her a order and she "Sexually Assaulted Me" ! I have her in Supreme Court and also complaint with "Ethics Committee of Iptar.... where she practices and the NYSED and she is aware of all this ... so I guess in her mind she has this order and it makes me look "Unstable"

Expert:  Zoey_ JD replied 11 months ago.
I've had plenty of clients over the years who lived on the same block as the complainant or who worked in the same community. It generally does not end up in a claim that the clients violated the order. Just steer wide. If you see her somewhere, walk away. Don't provoke anything or allow her to provoke anything.

If you were working with a lawyer and you get a sense that the woman is trying to set you up somehow, you want to let your lawyer know and he can contact the DA for you and speak to the complainant.

I won't presume to second guess why she put you through this, but these kinds of cases always result in a protective order in favor of the complainant. That's in part why the ACD rather than an outright dismissal. The DA doesn't feel you deserve a criminal record but he wants the complainant protected, just in case.
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 15932
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
Zoey_ JD and 10 other Criminal Law Specialists are ready to help you
Customer: replied 11 months ago.


I forgot to say Thank you.

Expert:  Zoey_ JD replied 11 months ago.
Hi,

Thank YOU! And best of luck for the coming months.
Customer: replied 11 months ago.

Too bad you weren't my Attorney. Thanks again!

Expert:  Zoey_ JD replied 11 months ago.
Thanks for the kind words!

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