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The court holds that the resolution of this issue requires an interpretation of such in CPL § 170.56 subd. 1(a)


This is a proceeding wherein the issue presented is whether or not a defendant may be granted an Adjournment in Contemplation under Criminal Procedure Law § 170.56, without the District Attorney’s consent, where the defendant has been granted a prior ACD under CPL § 170.55.

The court holds that the resolution of this issue requires an interpretation of such in CPL § 170.56 subd. 1(a), a construction heretofore unreported.

On 19 March 1979, the defendant was arrested for a criminal sale and possession of marijuana and resisting arrest. With the consent of the District Attorney’s office, all charges were ACD’ed pursuant to CPL § 170.55.

On 3 January 1980, the defendant was again arrested and charged with the criminal sale and possession of marijuana under Penal Law §§ 221.40 and 221.15, both misdemeanors.

The defendant, thereafter, moved for an ACD of the present marijuana charges pursuant to CPL § 170.56. The District Attorney’s office, however, opposes the granting of the defendant’s application on the grounds that the defendant has already received an ACD under CPL § 170.55 in the previous matter involving marijuana. They argue that the Court does not have the authority to grant the present ACD § 170.56 application without the prosecutor’s consent.

CPL § 170.56 states, in pertinent part: “Upon or after arraignment in a local criminal court where the sole remaining count or counts charge a violation or violations of sections 221.05, 221.10, 221.15, 221.35 or 221.40 of the penal law, the court, upon motion of a defendant, may order that all proceedings be suspended and the action adjourned in contemplation of dismissal; provided, however, that the court may not order such adjournment in contemplation of dismissal if the defendant has previously been granted such adjournment in contemplation of dismissal and the district attorney does not consent.

The court notes that CPL § 170.56(1)(b)-(e) are inapplicable to the case at bar.

It is without a doubt that under CPL § 170.56 a defendant who is granted an ACD is offered certain benefits not accruing under CPL § 170.55. In appropriate circumstances not only is the consent of the D.A. not required under CPL § 170.56 as it is generally required under the more general ACD provisions of CPL § 170.55 but the arrest itself is deemed a nullity based on the cases of People v. Campo and Kushner v. Dela Rosa. An ACD under CPL § 170.56, is a singular application of the law, which no other defendant receives even under CPL companion § 170.55 which applies to crimes other than drug-related ones as was also held in People v. Mann.

McKinney’s Consolidated Law of New York, Book 1, Statutes section 254, states: ‘By what is known as the doctrine of the “last antecedent,” relative and qualifying words, phrases, and clauses are to be applied to the words or phrases immediately preceding, and are not to be construed as extending to or including others more remote, unless such extension is clearly required by a consideration of the entire act. Thus, the word “such,” when used in a statute, must, in order to be intelligible, refer to some antecedent, and will generally be construed to refer to the last antecedent in the context, unless some compelling reason appears why it should not be so construed.’

Section 254 further states that the relative is always to be referred to such antecedents as will give the clause a sensible and reasonable meaning, and never, of course, is a grammatical construction to be followed when it leads away from the Legislative intent.

The court finds it appropriate to apply the rules of statutory construction to CPL § 170.56(1)(a). It is clear that “such”, as used in that section, refers to the situation where a defendant has a previous ACD under CPL § 170.56 and not CPL § 170.55. Thus, if the defendant had a previous CPL § 170.56 ACD, then the Court could not grant a subsequent CPL § 170.56 ACD over the prosecutor’s objection.

The Court concludes that in writing CPL § 170.56 as it did the Legislature intended that an application could be made, and granted, under CPL § 170.56 where the defendant has not previously received this type of ACD. For the prosecution to be able to invoke that earlier ACD to prevent the Court from granting this defendant’s CPL § 170.56 application would be contrary to the intent of these different statutory sections and would be contrary to the plain language of the statute itself.

Accordingly, the court grants the defendant’s application for an ACD pursuant to CPL § 170.56.

Stephen Bilkis & Associates welcome questions or comments regarding the case narrated above. If you want a thorough discussion of these fields of law, please feel free to call or visit us. Our Kings County Criminal Attorneys like our Kings County Marihuana Possession Attorneys or Kings County Drug Possession Attorneys are at your service.

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