Sometimes jail, prison, or probation are not the only options when you have been arrested. There are other alternatives that an individual may be eligible for, but these are best explored with the support and advice of a criminal defense attorney.

Here’s what you need to know about deferred adjudication and pretrial diversion.

What is Deferred Adjudication?

Deferred adjudication is a type of deal Defendants make with prosecutors to resolve criminal cases without ending up with criminal records. Deferred adjudication usually results in criminal charges being dismissed, however, Defendants must meet specific requirements set forth by the Court and the law.

The term itself means delayed judgment and that is exactly what it is. The Court delays its determination as to whether a person is guilty and how he or she will be punished for the crime in order to see if the person really changed for the better, has better control over their impulses, and can better manage their behavior. The terms of the deferred adjudication allow the defendant to demonstrate those changes – if the person has indeed changed their ways.

Instead of immediately being prosecuted or sentenced, deferred adjudication lets defendants enter into community supervision or enroll in some programs which will help them change for the better. They can enjoy many of the freedoms that are restricted during incarceration, including living with their family, raising their children, going to school, and maintaining employment. The process usually lasts from 6 months to 3 years, depending on the judge’s decision although the defense attorney does sometimes have some say in that determination.

A person’s criminal history and case are used to determine if deferred adjudication is an appropriate option. Typically, this plea deal is offered to first-time offenders, but it is ultimately up to the judge and the courts.

Once the defendant has successfully completed their deferred adjudication and has satisfied all of the requirements of the court, the judge will rule that the matter is complete and all the charges will be dismissed.

Deferred Adjudication vs Probation

At first glance deferred adjudication looks a lot like probation. However, there are some important differences. Deferred adjudication is, in fact, a legal alternative to sentencing a person to probation. Some of the primary differences between the two include:

  • Formal conviction
    • Probation – Yes it does include a formal conviction
    • Deferred adjudication – No, it does not include a formal conviction
  • Criminal record
    • Probation – Remains on your record
    • Deferred adjudication – No criminal record
  • Judgment
    • Probation – Immediate decision as part of the conviction
    • Deferred adjudication – postponed a decision to determine if you have changed or can adhere to the rules and requirements set forth by the courts
  • Requirements
    • Probation – May include meeting with a probation officer, counseling, seeking and keeping a job, drug rehab, avoiding criminal habits and crime, being unable to leave the jurisdiction, avoiding contact with victims or other offenders, etc.
    • Deferred adjudication – This May include community service, treatment, counseling, some type of community supervision, probation, etc.
  • If terminated
    • Probation – Defendant receives their original sentence
    • Deferred Adjudication – Defendant ‘s criminal case proceeds to trial. 

Deferred Adjudication in New York

New York does not have any specific laws to address deferred adjudication, but it is practiced in the state. It is often referred to as a “deferred prosecution agreement” but may also be called “deferred sentencing,” or “conditional plea”.

There isn’t much on the books about this practice, but it is acknowledged in sentencing requirements:

New York Criminal Procedure Law – Article 380

380.30 – Time for pronouncing sentence

3. Deferral of sentencing. The court may defer sentencing of any offender convicted of a class C, D, or E felony offense under articles two hundred twenty and two hundred twenty-one of the penal law or any class D or E felony offense under articles one hundred fifteen, one hundred forty, one hundred forty-five, one hundred fifty-five, one hundred sixty-five, one hundred seventy and one hundred ninety of the penal law, to a specified date no later than twelve months from the entering of a conviction if:

(a) The defendant stands convicted of his or her first felony offense.


(b) Pursuant to a plea agreement or the recommendation contained in the pre-sentence report the judge is inclined to impose an indeterminate term of imprisonment; and

(c) The court believes that prompt institutional confinement is not necessary to preserve the safety and security of society, that the individual may benefit from the rehabilitative opportunities presented by the deferral of sentencing, that absent such a rehabilitative opportunity there is a likelihood that the court would impose an indeterminate sentence of imprisonment, and that upon satisfactory completion of the period of deferral the court would be more likely to impose a sentence other than an indeterminate sentence of imprisonment under article seventy of the penal law.

In conjunction with a deferral of sentencing, the court may require that the defendant observe specified conditions of conduct and participate in such rehabilitative programs as the court deems appropriate. Upon application of the People made at any time during the period of sentence deferral, or where the court believes that the defendant may have violated the terms or conditions of the deferral order, and the court determines that such a violation occurred, the court may terminate the deferral order and set a date for sentencing.   

Deferred Adjudication and Immigration in New York

Noncitizens of the United States may face some dire consequences with deferred adjudication. One of the most concerning is deportation. Even a lawful permanent resident who is a noncitizen defendant but has lived in the U.S. for a long time and has citizen close relatives in the US can find themselves facing deportation if they plead guilty and accept a deferred adjudication program.

They may not be able to get an official I.D. card, obtain housing, secure work, get health insurance, go to school, renew their Green Card, may be rendered ineligible for a Green Card or citizenship, and more. What’s more, they can not only be placed immediately in immigration detention anywhere in the United States, but they could also be ineligible for asylum, waivers, or other types of relief from deportation.

In some cases, the noncitizen defendant could find that deferred adjudication is more harmful and detrimental to them than the criminal penalties that are usually assigned to the crimes they committed.

Does Deferred Adjudication Show Up on a Background Check?

The ability for a deferred adjudication to show up in a background check depends on the terms that the defendant agrees to when he or she accepts the plea deal. In some cases, there may be a clause that prohibits certain jurisdictions from allowing or making available or visible to the public, the defendant’s record. It doesn’t matter if they are applying for a private sector job or a public one.

When applying for a job, the defendant who has accepted a deferred adjudication may encounter questions on the application that addressed criminal background. Some will specifically ask about “convictions” while others ask about pleading no contest or guilty. Because the defendant was not found guilty, they were not convicted so they can truthfully answer no to conviction. However, if they plead no contest or guilty, they do have to disclose that if the application asks for it.

Is Deferred the Same as Dismissed?

Deferred adjudication is not the same as a dismissal. While it is not a conviction, it does provide a specific set of parameters that the defendant is required to adhere to in order to maintain their deferred status. These parameters are very similar to the restrictions and requirements set forth when a person is on probation. They must check in with a supervisory officer of the court such as a probation officer on a regular basis, they must remain within a specified area, and may be required to participate in certain programs such as anger management or drug rehab.

If the defendant fails to comply with the terms of their deferred adjudication, then it can become a conviction. Because of this, in some cases, probation may be a better option.

Can a Deferred Felon Own a Gun?

The short answer is no. An individual who is on deferred adjudication for a felony cannot possess a firearm or an illegal weapon during the term of deferment. If and when they have completed their term, and the case is dismissed or resolved non-criminally, meaning that they were not convicted, they may not be prohibited from owning or possessing a firearm.

However, this is something that the individual needs to discuss with their attorney to be absolutely certain. Every case is different, and their attorney can help them navigate the terms and conditions of the deferment as well as what happens once the term has ended.

What is a Pretrial Diversion?

A pretrial diversion is a prosecution alternative that involves a defendant entering into a program that consists of various services and is supervised with specific terms and conditions. It is administered by the U.S. Probation Service and is offered before the trial begins or sometimes even before there are any formal charges made. The participant enters into the program voluntarily and is typically required to sign an agreement. Upon successful completion, they will not be charged. If there are charges, they will be dismissed. If they do not complete the program, they will be prosecuted. It is typically around 18 months but that may be reduced.

The primary objectives of pretrial diversion are to help certain offenders avoid future criminal activity by diverting them from the traditional routes of processing and sentencing to a program that is comprised of community supervision and vital services that will help them become a productive members of society and be less likely to commit more crimes. It also saves judicial and prosecutorial resources so that they can be better and more effectively concentrated on major crimes. Pretrial diversion also may provide a vehicle of restitution to victims of crime and communities.

What are the Disadvantages of Diversion Programs?

Diversion programs are not for everyone. Some require the defendant to acknowledge guilt and that can be used against them later if they do not comply with the terms and face deportation, a criminal trial, or if they are subject to civil actions later. Agreeing to participate in a diversion program often means that the defendant is not able to sue for wrongful arrest or prosecution.

In some cases, the diversion may be counted as a conviction and used to suspend the defendant’s license or affect their immigration. Additionally, even if the result of the program is expungement the office of the prosecutor may retain a record of the person’s participation and use it to render them ineligible for diversion should they be arrested again later for another crime.

If you are facing charges and you believe a deferred adjudication or diversion program may be a good fit for you – or if you have been presented with such a proposal – you need to talk to an experienced, knowledgeable defense attorney before you sign on the dotted line.

Contact the Litvak Law firm today and get the representation you deserve. Mr. Litvak has years of experience in criminal defense law which means you will have the best chance for the best outcome possible for your case. Call today at (718) 989-2908 for your free consultation. Don’t leave your future to chance, you need a criminal defense attorney to protect your rights.