WILL A DESK APPEARANCE TICKET GIVE ME A CRIMINAL RECORD?

It is important to realize that getting a Desk Appearance Ticket simply means that you have been arrested for something and therefore does not automatically result in a criminal record. There are essentially only two ways to get a criminal record: Either you are found guilty after a trial or you yourself stand up on the record in court and plead guilty.

If neither of those things has happened, then you don't have a criminal record.

What most people really mean by asking this question is whether the ultimate OUTCOME of the case will give them a criminal record. And the answer to that question will depend on what the outcome of the case is.

If it is your goal to have your day in court and have the case go to a trial, then the outcome will obviously depend on the verdict after trial. If you are found guilty of a crime you will have a criminal record. If you are not found guilty of a crime, you will not have a criminal record.

Many people who are given desk appearance tickets, however, have some sense that they might like to try to resolve the case without having to go to trial.

Many cases that begin in the Desk Appearance Ticket process in New York end up negotiated in such a way that they are either dismissed and sealed as a result of an Adjournment in Contemplation of Dismissal, or are negotiated to a plea to a non-criminal offense and sealed.

In neither of the above two situations are people left with criminal records. In the case of the ACD resolution, the case is dismissed and sealed. Therefore, there is no criminal record. The criminal justice system, in fact, can't do anything more favorable for the accused, once the case is dismissed and sealed, than it could do for someone who is actually found not guilty at a trial. The same dismissal and sealing that happens after a not guilty verdict happens when the ACD dismissal kicks in.

In the case of a negotiated plea to a "violation offense", the person is left without a criminal record because a "violation" is by definition in New York State, NOT a crime. Pleading guilty to a violation is much like pleading guilty, in New York, to speeding. It does not give you a criminal record.

People are also frequently concerned about the related issue of the level of information that they can be required to disclose, or that can be recovered in future background checks for jobs.

And this is where things can get tricky.

THE CASE OF THE ACD

In the case in which a person receives an ACD, and the case is actually dismissed, the criminal justice system considers the case eliminated. As far as the New York criminal justice system is concerned, the person's record is as pure and clean as the day he was born. A "rap sheet" generated in Albany after the ACD dismissal date will NOT include the case. The "rap sheet" will make the person appear to have no criminal history whatsoever.

Therefore, if such a person is subjected to a "normal" background check where Albany is contacted for a rap sheet, the person or organization conducting this normal background check will not see the case and the person will appear utterly clean.

But this does not mean that the information about the case is erased or that the information is not kept somewhere in some government database. There will be certain situations when the Government, for example, will be able to access this information.

For example, if a person wants to obtain a gun license in New York City, the police department will conduct a background check on the person. For this purpose, the police are authorized to penetrate this "sealed" database and they will have access to the information about any dismissed and sealed case.

Furthermore, there may be other situations in which the Government (Federal and State) might be able to access the information. Applying for top secret security clearance might be one such situation.

People need to be conscious that in this day of electronically stored information, any information, once stored, is likely to be recoverable by someone with sufficient motivation, time, and resources.

The entire issue of what is sealed can also be rendered moot if you are under some obligation to reveal the information in order to get some sort of license or clearance. There are increasing numbers of situations in which people are required to answer the broad question "Have you ever been arrested?"

If you have been given a Desk Appearance Ticket, then the truthful answer to this question is "Yes" regardless of the outcome of the case. The fact that the truth may be difficult for most people to verify doesn't make the truth any different. Some lawyers have suggested that the purpose of the ACD is to restore the person his situation "prior to arrest" and therefore this frees a person to claim that he has never been arrested. Personally, I disagree with this position.

As powerful as the Legislature is, the Legislature cannot legislate fiction into fact. If the Legislature passed a law that 2 + 2 = 5, it would be the poor math student indeed who attempted to rely on "the law".

A person who relies on this lawyer argument that he has "never been arrested" because the ACD "made it go away" may have the advantage of being able to explain why he lied. But it makes it no less a lie. The prospective employer or person conducting the background check may "understand" intellectually this argument, but still may nevertheless feel deceived and treat the candidate accordingly. Therefore, I advise people to err on the side of telling the truth to such a question when they have had a case dismissed by way of an ACD.

The good news is that in most situations, people are not authorized to ask the question about having ever been arrested. More typically the question will involve prior convictions.

VIOLATION CONVICTIONS

In the case of the person who pleads guilty to a "violation" offense as part of some settlement negotiated by a lawyer, the person does not have a criminal record, but may face additional scrutiny and exposure of the existence of this non-criminal offense.

By operation of law in New York, the vast majority of "violation" offenses are sealed. This might tempt you to believe that they are therefore as difficult to expose as cases sealed by way of ACD. This is not the case.

The automatic sealing provisions that apply to most violations are different from those that apply to the ACD. The "sealing" that occurs in the ACD situation is more comprehensive and applies to the rap sheet and the court records available on a county by county basis.

The "sealing" that occurs in the context of violations is not quite as comprehensive. Violation convictions that are sealed are not supposed to appear on rap sheets, just the way ACD cases are excluded. But for the purposes of local court records kept in the courthouses around the state, violation records are not sealed and available. Locating these records may be difficult and inconvenient since it would require a search to be made locally and individually by county. Most background checking organizations simply request information from the rap sheet from Albany.

WHAT ABOUT A BACKGROUND CHECK

This common question has no answer because there is no such thing as "a" background check as if there is one and only one background check that is possible.  EVERY BACKGROUND CHECK IS DIFFERENT and will operate by different rules.  The background check that occurs in any given case will depend on the following factors:

Who is doing the background check.  The person or organization doing the background matters because the level of access to information will depend on who is doing the checking.  A private corporation doing a typical background check for an employee will have a different level of access to information than say, the Federal Government clearing someone for top secret security clearance.  Law enforcement and government background checks will expose more often times because the level of access to information will be greater.
What are they looking for?  Is the purpose of the background to check for felony convictions only, or misdemeanor and felony convictions?  Or are they looking for any and all contact with the police regardless of the outcome?  Keep in mind that most private organizations in New York State are prohibited from asking about anything but actual criminal convictions.  Law enforcement and certain licensing agencies are permitted to ask in some cases about any and all contact with the police (would-be lawyers must answer this type of question for example).  Realize that for the sorts of background checks that ask about any and all contact with the police, there is NO OUTCOME AVAILABLE IN THE CRIMINAL JUSTICE SYSTEM that will make it possible to deny such police contact if in fact it took place.  Even if you are acquitted after trial, DNA proves your innocence, you are pardoned by the President of the United States, or anything else, the truthful answer to the question of whether you have had any involvement by the police would be yes.  Unless you have a time machine, you are stuck with answering yes to the question.  
In the end, however, the most important thing to remember whether a person resolves a case with an ACD or by way of a negotiated plea to a violation offense, the person DOES NOT HAVE A CRIMINAL RECORD.

While the level of access that different people may have, legally or otherwise, may vary, the lack of a criminal record will remain a fundamental truth.


BY: DON A. MURRAY, ESQ.

Don Murray is one of the founding partners of Shalley & Murray, a New York criminal defense law firm with offices in New York City and Westchester County. Mr. Murray is a member of the National Association of Criminal Defense Lawyers. He has been practicing criminal defense in New York for more than 20 years. Any questions or comments about this article or seeking representation on a Desk Appearance Ticket can be directed to him directly at 718-268-2171.