N.Y. Criminal Procedure Law § 170.56: Adjournment in contemplation of dismissal in cases involving marihuana

§ 170.56 Adjournment in contemplation of dismissal in cases involving

marihuana.

1. Upon or after arraignment in a local criminal court upon an

information, a prosecutor's information or a misdemeanor complaint,

where the sole remaining count or counts charge a violation or

violations of section 222.10, 222.15, 222.25, 222.30, 222.45 or 222.50

of the penal law, or upon summons for a nuisance offense under section

sixty-five-c of the alcoholic beverage control law and before the entry

of a plea of guilty thereto or commencement of a trial thereof, the

court, upon motion of a defendant, may order that all proceedings be

suspended and the action adjourned in contemplation of dismissal, or

upon a finding that adjournment would not be necessary or appropriate

and the setting forth in the record of the reasons for such findings,

may dismiss in furtherance of justice the accusatory instrument;

provided, however, that the court may not order such adjournment in

contemplation of dismissal or dismiss the accusatory instrument if: (a)

the defendant has previously been granted such adjournment in

contemplation of dismissal, or (b) the defendant has previously been

granted a dismissal under this section, or (c) the defendant has

previously been convicted of any offense involving controlled

substances, or (d) the defendant has previously been convicted of a

crime and the district attorney does not consent or (e) the defendant

has previously been adjudicated a youthful offender on the basis of any

act or acts involving controlled substances and the district attorney

does not consent. Notwithstanding the limitations set forth in this

subdivision, the court may order that all proceedings be suspended and

the action adjourned in contemplation of dismissal based upon a finding

of exceptional circumstances. For purposes of this subdivision,

exceptional circumstances exist when, regardless of the ultimate

disposition of the case, the entry of a plea of guilty is likely to

result in severe or ongoing consequences, including, but not limited to,

potential or actual immigration consequences.

2. Upon ordering the action adjourned in contemplation of dismissal,

the court must set and specify such conditions for the adjournment as

may be appropriate, and such conditions may include placing the

defendant under the supervision of any public or private agency. At any

time prior to dismissal the court may modify the conditions or extend or

reduce the term of the adjournment, except that the total period of

adjournment shall not exceed twelve months. Upon violation of any

condition fixed by the court, the court may revoke its order and restore

the case to the calendar and the prosecution thereupon must proceed. If

the case is not so restored to the calendar during the period fixed by

the court, the accusatory instrument is, at the expiration of such

period, deemed to have been dismissed in the furtherance of justice.

3. Upon or after dismissal of such charges against a defendant not

previously convicted of a crime, the court shall order that all official

records and papers, relating to the defendant's arrest and prosecution,

whether on file with the court, a police agency, or the New York state

division of criminal justice services, be sealed and, except as

otherwise provided in paragraph (d) of subdivision one of section 160.50

of this chapter, not made available to any person or public or private

agency; except, such records shall be made available under order of a

court for the purpose of determining whether, in subsequent proceedings,

such person qualifies under this section for a dismissal or adjournment

in contemplation of dismissal of the accusatory instrument.

4. Upon the granting of an order pursuant to subdivision three, 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.