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RobertJDFL, Lawyer
Category: Criminal Law
Satisfied Customers: 13644
Experience:  Experienced in multiple areas of the law.
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I press charges against my ex wife a custom unique

Customer Question

I press charges against my ex wife for taking a custom unique authorized first print of my new book. The foreword was done by my late mentor. My book was the last book he wrote a foreword for. He was a prolific well know best selling author of over 75 book.I press charges with the local authorities here in NY Aug 2015. It was hell to get them them to own jurisdiction. But I did my research and convinced the district attorney that it was a violation of a penal law in the state of NY seeing the the books intrinsic value was over $1,500 and was at minimum petty larceny. Other charges could be pressed becauses when an officer of the same station attempted to call her and asked her to return the book, she said (on the police recorded line which I have a CD of) that she burned the book. Another violation, property distroyed by fire/flame. Additional my book also contained my personal hand written notes for changes and expanded thoughts for the offical run.Issue #1
Since then, I've called several times to to the court house and DA to get an update on the case. I was transferred to the attorney who never returned my calls. Never once gave me any info on the case and my book.Issue #2.
Last week I had it with the non response for the attorney handeling the case on the states behalf and went down to the court house and demanded some kind of update. I was told the case was close and it was assigned to another attorney in the DA office. I demanded and got a meeting with that attorney who seemed lost as to why I was never contacted from the first attorney. She then told me that the case was close due to a ACD adjournment contemplating dismissal.My question is:1. Is this normal proceedure?
2. How is it that I'm not contacted as the victim?
3. What about my book and justice if the proof was overwhelm where she was on police recorded line admitting to an officer very spitfully that she took the book and burned it.4. What are my options to get damages.
5. This seem like foul play can I sue state and the defendant?Please advise.
Submitted: 1 year ago.
Category: Criminal Law
Expert:  RobertJDFL replied 1 year ago.

Thank you for using Just Answer. I look forward to helping you. I'm sorry to hear about what happened to your book.

To answer your questions:

1) Every office has their own way of doing things --and for that matter, every attorney, so there's no specific " official procedure." But it's not uncommon for prosecutors to try and clear cases, and to reach plea deals on certain cases -typically those that are minor offenses and/or where a defendant does not have a prior record.

2) Prosecutors have wide discretion in what pleas they may offer a defendant (of course the judge has to sign off and ultimately has final say). They don't need to, and many times will not, consult with the victim(s). I will say that prosecutors do try to make an offer in line with what they believe a judge would sentence a person to, if they were convicted at trial, taking into account the nature of the crime, the person's criminal history, etc. I don't know what the prosecutor was thinking when they offered the ACD, and I don't want to speak for them, but know that this doesn't strike me as doing anything unusual.

3) Again, prosecutors and the courts have wide discretion in the sentence a person receives. I understand how you would take this personally and want significant punishment -but at best this is a misdemeanor (an ACD would not be offered for a felony) and if she had no priors, it was obviously felt that this was the best thing. Even overwhelming guilt doesn't necessarily mean harsh punishment. There are plenty of people who are caught red-handed in a variety of minor criminal offenses but receive similar light sentences.

4) You could sue her civilly for the value of the book.

5) There is nothing out of the ordinary that I see here based on these facts, though the other prosecutor should have returned your calls. That however doesn't rise to the level of foul play. Prosecutors also have immunity from civil suits. As I said however, you could sue the defendant for damages for the cost of the book.

Did you need clarification or additional information about my answer? If so, please reply, I'm happy to assist further. Otherwise, please remember to leave a positive rating for me by clicking on the stars,as experts are not employees of this site and we are only paid if you leave a positive rating.Thank you!

Customer: replied 1 year ago.
Two more questions.1. Do I have the legal right to know what my Ex pled in this case? If so how should I obtain that. All I got is that she was charged Petit Larceny, Penal Law 155.25 and that it was closed: Adjourned in Contemplation of Dismissal Nunc Pro Tunc.2. Why was this "Nunc Pro Tunc" Does that mean that another ruling was issued?3. Are these case transcripts public to obtain the recording or copy?Please advise.
Expert:  RobertJDFL replied 1 year ago.

Unless the case was sealed, the court record is public. You would need to contact the Clerk of Court where the case was held to see to how to get copies of anything. You might be able to get it online, or you may have to visit in person. Typically there is a copy fee.

2. Nunc Pro Tunc is an expression meaning "now for then" --typically it means a court ruling was applied retroactively to correct an earlier ruling. Without seeing documents I can't answer specifically what may have occurred. Adjourned in contemplation of dismissal, or ACD is a special type of dismissal of criminal charges, set forth in N.Y. Criminal Procedure Law 170.55. It applies in misdemeanor cases, and may be entered at any time before the defendant pleads guilty or the criminal trial commences. It may be entered upon motion by the prosecutor, the defendant, or the court with the consent of both parties. An ACD "is an adjournment of the action without date ordered with a view to ultimate dismissal of the accusatory instrument in furtherance of justice." This means that the criminal proceeding against the defendant will be adjourned (suspended) for a certain period of time -- usually six months (one year for certain drug and domestic offenses) -- at the end of which, the charges against the defendant will be dismissed.

3. Typically transcripts are available (again, something the Clerk should be able to tell you) but you would have to pay a court reporter to transcribe it for you.

Customer: replied 1 year ago.
Question.The Problem:
Today I called to the court house to get transcript of the same case. I was told that the case has been sealed.Question:
How can I demand these files be open? I'm i entitled to know anything about this case. The DA who now has the case said the was this was done wasn't the way she would have done it. Which was to sit down with the Victim. Also I wasn't aware that I was suppose to receive the hearing dates as well. I never got anything.I simply want to know how she plead. How can I get this information.
Please advise.
Expert:  RobertJDFL replied 1 year ago.

There is no automatic right to court records. If the records are sealed, you would have to petition the court to unseal the court record and show good cause as to why it should be granted.

She took an ACD. An ACD is not a guilty plea or an admission of guilt. The law is clear: "The granting of an adjournment in contemplation of dismissal shall not be deemed to be a conviction or an admission of guilt." N.Y. Criminal Procedure Law 150.55(8). The law further provides: "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." Furthermore, the law requires that "the record of such action or proceeding shall be sealed." N.Y. Criminal Procedure Law 160.50. In other words, an ACD means that the arrest and prosecution never happened. An ACD is not a finding of innocence; it simply wipes the slate clean.

So all she had to do was stay out of trouble for a period of time and she was left with no record.