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A protest last year at the intersection of Fifth Avenue and 47th Street was, as New York City protests go, fairly ordinary. Sixteen people upset over the Israeli-Palestinian conflict took to the street one morning intent on disrupting rush-hour traffic. Eleven of them linked their arms together with plastic pipes and metal chains and lay down across Fifth Avenue. The others stood in the street, some holding signs. Soon police officers arrived at the scene. They used electric saws to unchain the protesters and then arrested them. A year later, all 16 have been convicted of one count of obstructing governmental administration and two counts of disorderly conduct, all misdemeanors. Twelve were sentenced to community service, a common punishment for a demonstration of this sort. EXTRAORDINARY FIGHT The remaining four protesters, however, now find themselves in a fight over their sentences that is not ordinary. Their defense attorney says prosecutors are illegally trying to dredge up old, sealed records against them in an effort to punish them with jail time. He has gone to an appeals court to stop them. The attorney, Stephen W. Edwards, said that at least one of the sealed records involves a disorderly conduct plea, and 22 fall under the rubric “ACD”: adjournment in contemplation of dismissal. An ACD is a common and practical plea for small infractions and first-time offenders. A defendant may not want to go to trial over a small charge, and a prosecutor may not believe that a charge can be proved. As a compromise, a defendant agrees to perform community service or attend a lecture on drug abuse in exchange for a dismissal. ACDs are sealed. Defendants admit no guilt by accepting them. They are advised that after a period of time, commonly six months, their criminal records return to their previously unblemished state. To Edwards, sealed and dismissed means gone forever — as in, never to be used against a defendant again. So far, though, one Manhattan judge, Acting Supreme Court Justice John Cataldo, has disagreed. In May, Cataldo ruled that under Criminal Procedure Law �160.50, prosecutors may request the unsealing of court records containing ACDs and use them at a sentencing hearing in an effort to increase a defendant’s sentence. The request must be made to a Supreme Court justice, and Cataldo said unsealing should not be granted routinely. As for these protesters, the judge said the prior incidents were similar and therefore relevant. Last week, Edwards decided he did not want to give Criminal Court Judge Robert M. Stolz, who presided over the protesters’ trial, the chance to consider whether the defendants deserved a harsher sentence in light of their past conduct. Instead, he sought — and won — a stay from Appellate Division, 1st Department, Justice Angela M. Mazzarelli. “I’ve never seen a district attorney try to do this,” Edwards said. “Nor have I spoken to any lawyer who has seen it tried.” Barbara Thompson, a spokeswoman for Manhattan District Attorney Robert M. Morgenthau, said prosecutors in her office move to unseal records whenever they feel it is appropriate. She said she could not offer any examples of ACDs, in particular, that had been unsealed in the past, but she said the office believes it has the right to do so. RECORDS UNSEALED In legal papers submitted to Justice Cataldo, Assistant District Attorney Sean Sullivan argued there are few limits on what courts can consider at sentencing. After a conviction, he wrote, the court can only impose a fair sentence if it considers “all available information with respect to the defendants’ lives, characters, and prior actions.” Sullivan said that prior cases among the defendants have involved disruptions at the Holland Tunnel, St. Patrick’s Cathedral, Rockefeller Center and the New York Stock Exchange. These incidents, he said, helped prove that their objective during the Fifth Avenue protest was to “create a large public spectacle and disrupt the lives of as many people as possible.” In his ruling, Cataldo said that it is not uncommon for sentencing courts to consider prior criminal conduct for which a defendant has not been tried or convicted. He rejected Edwards’ contention that the Court of Appeals’ 1988 ruling in Matter of Alonzo M., 72 NY2d 662, held that ACDs may never be unsealed for use in sentencing. In Alonzo M., the Court found that the Probation Department was wrong to prepare a report for a delinquency matter that referred to sealed Family Court records. But Cataldo said the ruling left unresolved whether criminal court records could be unsealed in sentencing adults. He reasoned that the law enforcement exception of CPL �160.50 allowed prosecutors to unseal records if they could show that it was appropriate. In his papers seeking a stay from the 1st Department, Edwards argued that the opposite conclusion should be drawn about Alonzo M. It is clear, he said, that the Court first noted that adults benefit from “sweeping” sealing protections, and then concluded that the same should apply to juveniles. The 1st Department has requested briefs on Edwards’ Article 78 proceeding by the end of this month. He may receive some help from the Legal Aid Society’s special litigation unit, which plans to seek permission to file a friend-of-the-court brief on behalf of the defendants. NEW ACD PRECEDENT? Robert C. Newman, a staff attorney in the unit and a 32-year veteran of Legal Aid, said a precedent allowing ACDs to be unsealed would change the way Legal Aid advises its clients. “I’m sure that I have obtained many thousands of ACDs for clients,” Newman said. Those clients, he said, accepted the disposition with the understanding that it would be wiped from their records. “We believe that the Legislature intended that a person whose case was dismissed, whether outright or after an ACD, should be restored to the same legal status that he enjoyed before the arrest,” Newman said. He pointed to CPL �160.60, which says once a criminal action is terminated in favor of a defendant, “the arrest and prosecution shall be deemed a nullity and the accused shall be restored, in contemplation of law, to the status he occupied before the arrest and prosecution.” Newman said that this is not the first time Legal Aid has fought with prosecutors over ACDs. Three years ago, he said, the group settled a dispute with a district attorney’s office in the city after it was discovered that prosecutors were unsealing ACDs without seeking Supreme Court approval. Those files were being introduced to justify bail increases and tougher sentences, he said. Newman said a settlement reached between Legal Aid and the the prosecutor’s office restricted him from naming which office was involved. He said the office agreed to stop its practice and reconfigured its computer system to reveal less information about sealed documents to assistant district attorneys. Ronald L. Kuby, who recently became involved in the Fifth Avenue protest case, said that in his years of defending demonstrators he had “never seen a situation where non-violent civil disobedience was faced with a jail sentence.” “If the DA’s office is able to go back and dredge up allegations from sealed and dismissed cases, what is the value of a dismissal?” he asked.

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