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dizzycatnip

Junior Member
I had a ex-girlfriend intentionally lie about my conduct on a police report as well as under oath on a charge of aggravated harassment ny penal code 240.30 1(a) she stated as a fact the text messages I sent and that she sent, in fact the phone records shows she lied. I had been arrested and had spent several days in jail on a 10,000 bail which was changed to a 1,000 bail. Two years later I have received a acod and the case will be dismissed in my favor and i am put back to my original state as if i was never charged or arrested. can I sue her for doing this to me?
 


Isis1

Senior Member
I had a ex-girlfriend intentionally lie about my conduct on a police report as well as under oath on a charge of aggravated harassment ny penal code 240.30 1(a) she stated as a fact the text messages I sent and that she sent, in fact the phone records shows she lied. I had been arrested and had spent several days in jail on a 10,000 bail which was changed to a 1,000 bail. Two years later I have received a acod and the case will be dismissed in my favor and i am put back to my original state as if i was never charged or arrested. can I sue her for doing this to me?
can you? absolutely. but that's not the problem. the problem is your statute of limitations...which may have passed. well...that and the fact that you need proof.
 

Mass_Shyster

Senior Member
I had a ex-girlfriend intentionally lie about my conduct on a police report as well as under oath on a charge of aggravated harassment ny penal code 240.30 1(a) she stated as a fact the text messages I sent and that she sent, in fact the phone records shows she lied. I had been arrested and had spent several days in jail on a 10,000 bail which was changed to a 1,000 bail. Two years later I have received a acod and the case will be dismissed in my favor and i am put back to my original state as if i was never charged or arrested. can I sue her for doing this to me?
You may be able to sue for abuse of process. You may have a problem with the statute of limitations since that is one year for intentional torts in NY.

This will likely be expensive to litigate, and unless the defendant is likely to be able to pay any judgment awarded, an attorney will probably not take the case on contingency.
 

dizzycatnip

Junior Member
can you? absolutely. but that's not the problem. the problem is your statute of limitations...which may have passed. well...that and the fact that you need proof.
The fact is i do not need proof (I have it) and reguarding the statue of limitations this is no fault of mine this is a circumstance beyond my control.
 

Proseguru

Member
The fact is i do not need proof (I have it) and reguarding the statue of limitations this is no fault of mine this is a circumstance beyond my control.
Does not matter; SOL is SOL is SOL, makes you SOL. You could have filed but decided not to & that's OK, you don't have to. But allowing the SOL to expire kills any suit. You could sue, maybe they will not argue SOL...cost you ~ $500 diy dollars to find out.
 

Mass_Shyster

Senior Member
Does not matter; SOL is SOL is SOL, makes you SOL. You could have filed but decided not to & that's OK, you don't have to. But allowing the SOL to expire kills any suit. You could sue, maybe they will not argue SOL...cost you ~ $500 diy dollars to find out.
One of the required elements of abuse of process is that the plaintiff is cleared of all charges. Since this is only about to happen, the statute of limitations may not have started running yet, since it is not possible to bring the suit until the plaintiff is cleared.
 

justalayman

Senior Member
One of the required elements of abuse of process is that the plaintiff is cleared of all charges. Since this is only about to happen, the statute of limitations may not have started running yet, since it is not possible to bring the suit until the plaintiff is cleared.
I disagree. Nothing concerning the charges is about to happen, at least as far as putting the OP in a position to claim an abuse of process. An ACOD is not a finding of not guilty which is what would be required for the disposition of the criminal charges for OP to be able to claim improper acts by the accuser.


OP could have disputed the charges long ago with the proof he now has. That would have resulted in a finding of not guilty or maybe even the charges dismissed. OP was essentially found guilty so his actions now cannot be based on the abuse of process angle. OP is not being cleared of the charges. They are receiving what is effectively an expungement. Not the same thing.
 

Mass_Shyster

Senior Member
I disagree. Nothing concerning the charges is about to happen, at least as far as putting the OP in a position to claim an abuse of process. An ACOD is not a finding of not guilty which is what would be required for the disposition of the criminal charges for OP to be able to claim improper acts by the accuser.
I relied on OP's statement that the ACOD meant that the "case will be dismissed in my favor and i am put back to my original state as if i was never charged or arrested." It seems that the ACOD isn't really that.
 

Mass_Shyster

Senior Member
More info on this:

An adjournment in contemplation of dismissal (“ACD”) is a non-final disposition. It is not a “favorable termination for purposes of a malicious prosecution action” ( Lewis v. Counts, 81 A.D.2d 857, 438 N.Y.S.2d 863). Since it is made prior to a decision on the merits, an ACD leaves open the question of guilt, thereby precluding an action for malicious prosecution by one who accepts such a disposition ( Fair v. City of Rochester, 84 A.D.2d 908, 446 N.Y.S.2d 668). The purpose of the statutory ACD procedure was to provide a shield against the criminal stigma that would attach to a defendant accepting such an adjournment; it was not intended to present such a defendant with a sword for recovery of monetary damages as a result of the prosecution (*309 Triebwasser v. State of New York, 117 Misc.2d 92, 457 N.Y.S.2d 407). While such an adjournment is neither a conviction nor an acquittal, it does interdict an action for malicious prosecution ( Hollender v. Trump Village Cooperative, 58 N.Y.2d 420, 461 N.Y.S.2d 765, 448 N.E.2d 432).

Lancaster v. Kindor 98 A.D.2d 300, 308-309, 471 N.Y.S.2d 573, 579 (N.Y.A.D. 1 Dept.,1984)
 

dizzycatnip

Junior Member
I disagree. Nothing concerning the charges is about to happen, at least as far as putting the OP in a position to claim an abuse of process. An ACOD is not a finding of not guilty which is what would be required for the disposition of the criminal charges for OP to be able to claim improper acts by the accuser.


OP could have disputed the charges long ago with the proof he now has. That would have resulted in a finding of not guilty or maybe even the charges dismissed. OP was essentially found guilty so his actions now cannot be based on the abuse of process angle. OP is not being cleared of the charges. They are receiving what is effectively an expungement. Not the same thing.
I sincerely hope you are not a attorney, you state that proof would result in a finding of not guilty or maybe even the charges dismissed? good opinion but not a fact, look at the history of law such as people spending up to 34 years in prison for crimes they never *actually* commited, furthermore the acod does clear the charges after a period of time usally with in six months with a order of protection if there is no further trouble the charge is dismiSsed on set date and is not effectively an expungement. expungement does not even exist in new york state and the only thing a acod bars me from doing is to sue for malicious prosecution. NEW YORK CRIMINAL PROCEDURE LAW § 170.55 Adjournment in contemplation of dismissal.
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, or in the case of a family offense as defined in subdivision one of section 530.11 of this chapter, one year, 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***.
The granting of an adjournment in contemplation of dismissal shall not be deemed to be a conviction or an admission of guilt. No person shall suffer any disability or forfeiture as a result of such an order. Upon the dismissal of the accusatory instrument pursuant to this section, the arrest and prosecution shall be deemed a nullity and the defendant shall be restored, in contemplation of law, to the status he occupied before his arrest and prosecution.
 

quincy

Senior Member
Okay, dizzycatnip.

Now go back and reread what has been previously posted by other forum members.

Your original question asked if you could sue your ex-girlfriend. The answer to that question still appears to be "no." ;)
 

quincy

Senior Member
Ah. Well, then, HG. I suppose it would be true to say that, yes, dizzycatnip can sue his ex-girlfriend (the lawsuit will just not go very far).

What is said in police reports is covered by a qualified privilege (defeated only by a showing of actual malice) and statements made under oath are considered absolutely privileged. Neither police report statements nor statements made under oath can be used to support a defamation suit (generally). In addition, the statute of limitations would bar any defamation suit from being filed at this point.

And, because an ACD is not a finding of not guilty or a dismissal in dizzycatnip's favor, which is required for a malicious prosecution suit to go forward (as nicely detailed by Stevef with his case cites), a malicious prosecution suit seems out of the question.

BUT, if dizzycatnip has time and money to blow, he can file suit against his ex-girlfriend and then watch while his suit get dismissed. ;)


As a note to dizzycatnip: The fact that you were arrested and charged and granted an ACD may still need to be disclosed on some employment applications. You may also wish to do a background check on yourself to make sure the arrest and charge does not show up - many background check companies mine arrest data but do not update their records to show that arrests were in error, that charges were dropped, that convictions were overturned. If errors appear, contact the background check companies for information on how to get the information on you removed.

As another note: I must type REALLY slow, because both Zig and Blue Meanie beat me to the "yes."
 
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justalayman

Senior Member
dizzycatnip;2989954]I sincerely hope you are not a attorney, you state that proof would result in a finding of not guilty or maybe even the charges dismissed?
You are the one claiming you have proof enough to sue. That same evidence would have gotten you off on the criminal charge so where was it a couple years ago? Remember, the phone records that show she was lying? Maybe because there was more than the text messages that got your strung up.


good opinion but not a fact, look at the history of law such as people spending up to 34 years in prison for crimes they never *actually* commited, furthermore the acod does clear the charges after a period of time usally with in six months with a order of protection if there is no further trouble the charge is dismiSsed on set date and is not effectively an expungement.
are you dense? I said it does not give you a finding of not guilty which is what is required for you to successfully sue your ex. I likened it to an expungement which is a cleansing of your records.


expungement does not even exist in new york state and the only thing a acod bars me from doing is to sue for malicious prosecution.
I didn't say it did. I compared what you have received to an expungement in that they both cleanse your record.

as to being barred from only suing for malicious prosecution; did you happen to see where stevef provided proof you are wrong?
 

dizzycatnip

Junior Member
You are the one claiming you have proof enough to sue. That same evidence would have gotten you off on the criminal charge so where was it a couple years ago? Remember, the phone records that show she was lying? Maybe because there was more than the text messages that got your strung up.


are you dense? I said it does not give you a finding of not guilty which is what is required for you to successfully sue your ex. I likened it to an expungement which is a cleansing of your records.


I didn't say it did. I compared what you have received to an expungement in that they both cleanse your record.

as to being barred from only suing for malicious prosecution; did you happen to see where stevef provided proof you are wrong?
go back to law school kid. bye
 
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