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NYCDS Testifies at City Hall About ACD Employment Discrimination

Testimony of

Sergio De La Pava

Legal Director

New York County Defender Services

 

Before the

Committee on Civil and Human Rights

Intro. 1314-2018

January 22, 2020

My name is Sergio De La Pava and I am the Legal Director at New York County Defender Services (NYCDS). We are a public defense office that represents New Yorkers in thousands of cases in Manhattan’s Criminal and Supreme Courts every year. I have been a New York City public defender for more than twenty years. Thank you to Chair Eugene for holding this hearing on Intro. 1314-2018, a bill that NYCDS strongly supports because it would extend employment protections to people with non-criminal convictions of violations and open Adjournments in Contemplation of Dismissals.

Intro 1314-2018 is a critical and long overdue reform because millions of New Yorkers have a violation or open ACD on their record. A violation is an offense, other than a traffic infraction, for which jail time in excess of 15 days cannot be imposed. A violation is not a crime and a disposition of a violation does not create a criminal record. An ACD, or adjournment in contemplation of dismissal, allows for a complete dismissal of the charge if the accused person is not re-arrested within a six-month period.[1]

Yet there is widespread confusion among the general public about what a violation and ACD are and whether they constitute a criminal conviction. The short answer is that they do not create a criminal record and people agree to these dispositions in court specifically because they do not. Intro 1314 will clarify this for employers and re-affirm the intended meaning of these dispositions.

To give you some context, police in New York City arrested nearly 250,000 people in 2018.[2] Of those arrests, 109,516 (43%) resolved with a disposition of a violation or in an ACD.[3] These statistics are only for one year, a year in which arrests are at a historic low.

People with open ACDs frequently experience employment discrimination in the months delay between the disposition and the final dismissal six months later. During that period, the charges appear as a pending case are accessible to the public – including employers. The law already protects workers after their ACD’d case is dismissed, but during the time between the ACD order and the final dismissal, workers are subjected to rampant discrimination that prevents them from maintaining employment and supporting their families.[4]

On a related note, the City must do a better job of educating the public about the possibility of applying for the sealing of past criminal convictions under the somewhat recently enacted Criminal Procedure Law 160.59. The Office of Court Administration estimates that over 600,000 people are eligible for relief under this statute but to date applications number far less than one percent of that. The underutilization of this vital reform leads to unnecessary employment discrimination and is a severe drain on our local economy. The Council should take a leadership role in addressing this shortcoming.

Intro 1314 is a commonsense and long overdue clarification for employers about the nature and intended purpose of ACDs and violations – dispositions that were not intended to saddle people with criminal convictions. We urge you to pass this bill this session.

If you have any questions about my testimony, please contact me at sdelapava@nycds.org.

[1] N.Y. Criminal Procedure Law § 170.55.

[2] New York State Division of Criminal Justice Services, New York City Adult Arrests Disposed (2014-18), available at https://www.criminaljustice.ny.gov/crimnet/ojsa/dispos/nyc.pdf.

[3] Id.

[4] Melissa Ader, Opinion: Loophole means criminal charges set to be dismissed upend lives in NYS, City Limits, March 7, 2019, available at https://citylimits.org/2019/03/07/opinion-loophole-means-criminal-charges-set-to-be-dismissed-upend-lives-in-nys/.