This action commenced on, or about July 14, 2021, with the filing of a violation information, accusing the Defendant, and his co-defendant ^[FN1] thereunder, of contravening NY PENAL LAW § 240.26(3) (2nd degree harassment). On October 6, 2021, the action was unconditionally adjourned in contemplation of dismissal ("ACD"). Before the adjournment matured into a dismissal, the People filed a procedural motion under NY CRIM PROC. LAW § 170.55(2), seeking an order restoring the case to the calendar, following the Defendant's arraignment on a Class A misdemeanor criminal trespass charge. For the reasons discussed herein, the People's application is denied.

On July 14, 2021, Defendant was charged under a violation information, with second degree harassment, in contravention of NY PENAL LAW § 240.26(3). The People's restoration application claims the Defendant looked inside a window of the complainant's residence, yelled at her, and [*2]created disturbances from his upstairs living quarters. On October 6, 2021, this court ordered the case ACD'd, under NY CRIM PROC. LAW § 170.55.

On January 11, 2022, during the ACD's pendency, the Defendant was charged with Class A misdemeanor criminal trespass, in contravention of NY PENAL LAW § 140.15(1). Like the violation charge, the misdemeanor charge arises from the Defendant's alleged conduct, relating to the complaint's residence—namely entering and remaining unlawfully therein. At the Defendant's arraignment on the misdemeanor charge, both the People, and the Defendant were harmonious inasmuch as the violation charge had been ACD'd without condition. The following day, the People filed the instant restoration application.

The People contend this case should be restored to the calendar. The corresponding motion recounts the procedural posture of the dual charges, contends dismissal would not be in the interest of justice, and prays for an order restoring the ACD'd violation to the calendar for further proceedings.

Although the Defendant did not oppose the People's motion, his position can be gleaned from his filing a motion to dismiss the underlying accusatory instrument.

Analysis begins with pertinent parts of NY CRIM PROC. LAW § 170.55, stating:

§ 170.55(1) [. . .] after arraignment in a local criminal court upon an information [ ], and before entry of a plea of guilty thereto or commencement of a trial thereof, the court may, upon motion of the people or the defendant and with the consent of the other party, or upon the court's own motion with the consent of both the people and the defendant, order that the action be "adjourned in contemplation of dismissal," as prescribed in [ ]:

§ 170.55(2) An adjournment in contemplation of dismissal is an adjournment of the action without date ordered with a view to ultimate dismissal of the accusatory instrument in furtherance of justice. Upon issuing such an order, the court must release the defendant on his own recognizance. Upon application of the people, made at any time not more than six months, [ ] after the issuance of such order, the court may restore the case to the calendar upon a determination that dismissal of the accusatory instrument would not be in furtherance of justice, and the action must thereupon proceed. If the case is not so restored within such six months or one year period, the accusatory instrument is, at the expiration of such period, deemed to have been dismissed by the court in furtherance of justice.

— NY CRIM PROC. LAW § 170.55

To this end, once the six-month period following an ACD order concludes, undisturbed, the case is mechanically dismissed. Hollender v Trump Vil. Coop., 58 NY2d 420, 424 (1983). However, a court may restore an ACD'd case to its calendar, before the six-month period elapses, if the People prevail upon a restoration motion. People v. Miterko, 186 Misc 2d 337, 341 (Sup. Ct. Kings Co. 2000). When the People demonstrate dismissal of the underlying accusatory instrument would not be in furtherance of justice, a court may vacate the ACD order, and restore the case to the calendar. People v. Carter, 33 Misc 3d 14, 16 (App. Term 2011). Such vacation and restoration typically occurs when: 1) The subject defendant violates a condition imposed upon the ACD. (Id., at 16); 2) The facts and circumstances underpinning the ACD have changed. People v. Antis, 147 Misc 2d [*3]513, 515 (Co. Ct. 1990); or, 3) Additional facts show the ACD should not have been granted in the first instance. (Id., at 515). Where the People do not show the defendant violated imposed conditions, the People have not proffered requisite grounds for prevailing on the motion. Carter, 33 Misc 3d at 16. The Court Of Appeals has noted the ACD procedure is uniquely suitable "to lesser offenses", frequently involving "neighbor[s]." Hollender, 58 NY2d at 424. In all instances, cases resolved by ACD, do not result with a determination favoring the defendant. Smith-Hunter v. Harvey, 95 NY2d 191, 196—97 (2000).

Here, although the People cite no jurisprudence within the restoration motion, the application was presented under correspondence, proclaiming the Defendant "committed another crime", in implicit reference to the misdemeanor charge. This is a doubly inaccurate assertion. First, this action arose from accusations of the Defendant committing a violation, by contravening NY PENAL LAW § 240.26(3). Since violations are non-criminal offenses, even if the Defendant were convicted, he would not have committed a crime. See NY PENAL LAW §100. Second, although the Defendant does now face a criminal misdemeanor charge, he faces it un-convicted, whilst cloaked in a presumption of innocence.

Furthermore, this court has not determined mechanical dismissal of the ACD'd violation information would impede the furtherance of justice. Importantly, both the People and Defendant have rejected the premise that the ACD was predicated upon condition. As such, the People cannot prevail, under Carter, supra. Moreover, this case, and the misdemeanor case, both arise from the same operative set of facts, a commonality of neighboring parties, and a singular locus, where the alleged conduct occurred. Accordingly, ACD is uniquely suitable under Hollender supra.

It therefore follows that the facts underpinning the ACD have not shifted, under Antis, supra. Nor can it be said the Defendant is eluding the furtherance of justice, when he remains standing in dock—particularly where subjected to more serious consequence. Such reasoning dovetails with the suitability of ACD's for "lesser offenses" involving "neighbor[s]", discussed in Hollender. To be sure, the ACD'd charge is a (lesser) violation, stemming from the Defendant having allegedly harassed his neighbor by creating disturbances. In addition, the People have not filled Antis's prescription, by coming forward with any procedural, or factual reasons suggesting the ACD was improvidently granted. Finally, declining intervention, and allowing the ACD to mature into a dismissal, will not result in a determination favorable to the Defendant. See Smith-Hunter, supra.

The court finds no reason why this action should proceed, and no reason why leaving the case adjourned, and off the calendar, would impede the furtherance of justice. Accordingly, barring happenings, events, things, and matters contrary to the interests of justice—transpiring between this date, and April 7, 2022—the violation charge shall remain adjourned in contemplation of dismissal.

The People's restoration application is denied. The People retain leave for filing a subsequent application until April 6, 2022. In the absence of a further order to the contrary, the adjourned violation charge shall automatically and mechanically consummate, and mature into a dismissal, on April 7, 2022. The Defendant shall promptly notify this Court whether the Motion to Dismiss of even date, is withdrawn in light of this decision, or whether the Motion to Dismiss remains pending.

IT IS SO ORDERED.