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Dismissed drug possession charge and background checks at FDIC insured institutions?

New York, NY |

I will be applying for an internship at an FDIC insured institution. I received an ACD for possession of a controlled substance (NYS 220.03). I received the ACD about two months ago, and have four more months to go. I looked up some case law, and the Supreme Court of NYS in a case regarding employment discrimination at an FDIC insured institution ruled that an ACD is a form of "pre-trial diversion."

Does Section 19 apply to "pre-trial diversion" programs that are not related to breach of trust or honesty, such as drug possession?

Here is the link: please read Section B!

Thank you so much!

the link did not post:

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Attorney answers 3

Best Answer

Hire a lawyer to get the case dismissed now rather than in 4 months. I do this all the time.

I am a former federal and State prosecutor and have been doing criminal defense work for over 16 years. I was named to the Super Lawyers list as one of the top attorneys in New York for 2012 and 2013. No more than 5 percent of the lawyers in the state are selected by Super Lawyers. Martindale-Hubbell has given me its highest rating - AV Preeminent - in the areas of Criminal Law, Personal Injury, and Litigation. According to Martindale-Hubbell”AV Preeminent is a significant rating accomplishment - a testament to the fact that a lawyer's peers rank him or her at the highest level of professional excellence." Fewer than 8% of attorneys achieve an AV Preeminent rating. I also have the highest ranking – “superb” – on Avvo. The above answer, and any follow up comments or emails is for informational purposes only and not meant as legal advice.



I can always rehire my lawyer. But out of your personal experience, you've been able to have an ACD case dismissed before the 6 month anniversary of the court's disposition?

Eric Edward Rothstein

Eric Edward Rothstein


Yes. I do it all the time.


Yes. Your ACD is for misdemeanor criminal possession of a controlled substance punishable by up to one year and/or $1,000 fine. Because the fine is not less than $1K and the potential sentence not less than one year, you will hve to apply to the FDIC under section 19 because you do not meet the "de minimis" requirements.

If you found this "helpful" or "best answer," please click it with my appreciation. My response is for educational purposes and does not constitute legal advice nor creates an attorney client relationship which requires all the details and a personal conference.



De Minimis language: "The offense was punishable by imprisonment for a term of one year or less and/or a fine of $2,500 or less, and the individual served three (3) days or less of actual jail time;" NYS CPL 220.03: Criminal Possession of a Controlled Substance 7th is found in NYS Penal Law §220.03. It is Class A misdemeanor and punishable by up to one (1) year in jail, three (3) years probation and a $1,000 fine.


You need to have the case advanced and have an attorney ask the Judge for early-sealing of the ACD. Until the case is sealed, it is technically an open matter.

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