Aggravated Felonies

Deferred prosecution is a phrase that describes a situation in which prosecution and defense negotiate an agreement with the following elements:

            (1)  No plea of guilty or no contest is entered.

            (2)  The defendant makes no admission of facts sufficient to support a conviction for any offense.

            (3)  The defendant waives any right to speedy disposition of the criminal case.

            (4)  Both sides agree to postpone criminal proceedings for an agreed-upon period, such as six months or one year, during which time the defendant will comply with certain conditions.  These conditions can be simple, such as “obey all laws,” or more demanding, such as successful completion of a residential drug program or payment of specified restitution.

            (5)  The initial agreement provides that if the defendant successfully complies with the specified conditions during the period of deferred prosecution, the prosecution will dismiss all charges without entry of a plea or verdict.

            (6)  The court postpones the case for the agreed period.  This is normally the only agreement required from the court.

            (7)  After successful completion of the deferred prosecution agreement, the prosecution moves to dismiss all charges.  Typically, the prosecution has virtually total authority over the bringing and dismissal of charges, and the court will generally have no authority to refuse to dismiss charges when both sides agree.

            Successful completion of a deferred prosecution agreement does not constitute a conviction under the statutory definition of conviction for immigration purposes, because the defendant completes the required conditions and obtains a dismissal of all charges.  No plea of guilty or no contest has been entered at any time.  There has been no admission of facts sufficient to support a conviction.  There has never been a verdict of guilty entered.  The elements of the statutory definition of conviction have not been met.  See § 3.32, supra.  There is therefore no conviction for immigration purposes.

            As a general matter, the rules to remember for New York convictions are:

            (1)  Adjournment in Contemplation of Dismissal (ACD) is a pre-plea disposition and not a conviction for immigration purposes;

Since foreign nationals who fail to comply with ACD face criminal consequences, the immigration authorities are likely to treat applicants on ACD as potentially subject to immigration consequences and deny applications for immigration benefits on the basis that there is no certainty that they will satisfactorily comply with the program. ACDs almost always result in dismissal. If not, the case will be placed on calendar and is tried or disposed of by plea as with any other criminal case.

            (2) Conditional Discharge (CD) is a post-plea disposition and is a conviction for immigration purposes;

            (3) Youthful Offender (YO) is not a conviction for immigration purposes.

For example, an “Adjournment in Contemplation of Dismissal” or “ACD” under New York law is an immigration-neutral disposition in that it is a pre-plea disposition in which the prosecution eventually dismisses the case after a specified period of time (usually six months or a year) without ever taking any plea on the issue of guilt or making any determination of guilt.  During the ACD period, the criminal case is open.