Criminal Appeals

One of the most regretted aspects of criminal defense is the criminal appeals process. The reason I say this is because, in order for defendant to have an interest or desire to engage in the criminal appeals process, that means that the defendant has been subjected to some type of conviction and penalty regarding a criminal case.

Our attorneys are here to provide insight into the criminal appeals process including:

How to Preserve Your Right to Appeal;
Briefing the Case and Filing the Appeal;
New York State and Federal Criminal Appeals.

If you are looking for representation for your federal or state criminal appeal, call us now at (212) 736-3900.

Filing a Notice of Appeal

Unlike a criminal trial, a criminal appeal has its own process that begins with counsel for the defendant filing a Notice of Appeal.

A Notice of Appeal must be filed within 30 days of the imposition of the penalty, regardless of whether the defendant pled guilty or was convicted after a trial.

New York State Criminal Appeals

After the notice of appeal is filed, the defendant and his family have to make a decision regarding whether the family will seek to retain appellate counsel or have an appeal counsel assigned.

A criminal defendant in New York state has one appeal of his criminal conviction as of right; the right to counsel accompanies that right.

What is a “Poor Person Application?”

If a defendant believes that his or her family may not have sufficient funds to cover the appellate counsels fee, as well as the cost of transcripts, then it is usually a good decision for the defendants to file what is known as a “poor person application”. This is an application for poor person status and assignment of counsel in a criminal appeal in New York.

The poor person’s application it’s simply an affidavit prepared by the defendant that details his or her financial situation and lack of resources to finance the criminal appeal process.

In most cases, the appellate division will grant the poor person’s application and dispense with the cost of having the trial transcripts generated. The defendant also will be assigned an attorney to prepare the appeal.

If the defendant learns, after having filed the application, that he or she can afford council, then a defendant may always withdraw the application.

What is a “Limited” Poor Person Application?

Another circumstance where the application for poor person can be applicable is where the defendant or the defendant’s family can generate enough funds to retain counsel but cannot afford to cover the cost of having the transcript produced. Then, generally, appellate counsel for the defendant will draft a “limited” poor persons application.

We have done this in a number of cases successfully for defendants who sought our assistance in filing an appeal.

Where Should a Poor Person’s Application Be Filed?

The next point of interest would be where the poor person’s application should be filed and which court would actually hear a defendant’s appeal.

The defendant’s poor person applications should be filed in the Appellate Division Department that covers the County in which the defendant pled guilty or went to trial.

Specifically, The New York State Appellate Division. Although there is only one appellate division, this division has been separated into four Departments – solely for administrative purposes. What this means is that, in New York, you have four Departments of the appellate division.

What are the Four Departments of the Appellate Division in New York?

First Department for example covers New York and Bronx Counties;
Second Department covers Kings County (which is Brooklyn) and Long Island;
Third Department covers jurisdictions in upstate New York in the Albany Duchess and surrounding towns; and the
Fourth Department covers areas in the higher counties of New York State such as Rochester, Buffalo, St. Lawrence and the like.

Based on which county defendant was convicted – that would dictate which county the defendant files his or her poor persons application.

The appellate court for each Department is set up totally different from the way that many defendants would be used to from having only entered trial level court.

Who is Able to Attend Oral Arguments?

The appellate court is a court where the defendant would not be produced at the time that his appellate brief is argued. It would be counsel for the defendant, counsel for the government, and up to nine judges. In addition, spectators are allowed. This means that the defendant’s family members, loved ones, and supporters may attend oral arguments even though a decision will not be rendered that day.

Now let’s deal with the appellate process itself. A lot of times, once a defendant is convicted – especially if a sentence includes jail time – a defendant’s family’s first question is always, “How long will an appeal take?”

How Long Does a Criminal Appeal Take?

Generally, the appeal process takes up to two years or more and there is no easy way to short circuit the process. A quick appeal process may be resolved in an 18-month period – but this is generally uncommon.

Why Does the Appeal Process Take So Long?

The reason for the amount of time involved in the appeal process is because almost every criminal defendant convicted in the state of New York will exercise their right to have their conviction reviewed by an appellate level court.

This leads to the transcription process takes much longer because usually you have one stenographer who’s trying to transcribe thousands of plea transcripts. At any given time, a stenographer may be producing sentencing transcripts and trial transcripts, all while maintaining their daily duties to be present for current trials and court proceedings.

Also, there are only four Departments for the state of New York and each Department is in charge of scheduling not only criminal appeals but also civil appeals for matters that originate within their jurisdiction.

This is why the process will usually take a minimum of twenty-four months for a criminal appeal to come to a conclusion.

Can You Appeal a Violation or Misdemeanor Conviction?

No, one distinction that should be noted when discussing the criminal appeals process in New York state is that misdemeanors and/or violations are not heard.

For administrative purposes, convictions and penalties stemming from misdemeanors and violations in criminal courts in New York City that are non–felonies are heard by the appellate term – which has the same power as the appellate division but has a different panels of judge). Otherwise, it is an identical process.

Can Any Attorney File a Criminal Appeal?

Preparing appeal briefs is not an undertaking for just any attorney licensed to practice law in the state of New York. The appeal process requires that an attorney have a broad knowledge of the legal applications of various rules and regulations including appellate procedures.

What is the Job of an Appellate Attorney?

The job of an appellate attorney is to:

review all of the work done by the original trial counsel;
review all of the evidence submitted during the trial by the defense;
review all of the evidence submitted during the trial by the prosecution;
analyze every decision made by the trial judge and the specific language used by the trial judge when instructing or advising the jury.

The appellate attorney must also analyze every single word that is uttered by the prosecutor (as well as himself) before the jury. As you can see, this task takes a high level of skill, experience, and attention to detail.

How is an Appeal Different from a Trial?

Unlike a trial – where the ultimate finder–of–fact is a jury of everyday citizens – in an appeal, the person making the ultimate decision of whether to affirm a conviction or reverse a conviction will be a panel of judges who are well versed in a law and trained to be very inquisitive.

This makes an appellate argument (and the appellate process as a whole) a much more academic and laser–focused process.

How is an Appellate Attorney Different from a Trial Attorney?

The appellate attorney is a unique attorney within this process because an appellate attorney is responsible for spotting issues in order to properly preserve the ability to challenge them. In order to challenge many issues, the right to object must be properly preserved.

During an appellate review, a good appellate attorney will also look for potential issues that are not fully a part of the trial record but may warrant a collateral attack.

For example, seeking to have the conviction reversed and/or to create a sufficient record for the issue or issues to ultimately be included as part of the direct appeal.

What Makes a Good Appellate Attorney?

A good appellate attorney is a very technical an open-minded trial attorney. Most importantly, a good appellate attorney is a legal academic an analyst who enjoys reviewing thousands of pages of documents and reading tons of case law.

What Does Your Firm Do When Asked to Handle Their Criminal Appeal?

We have had clients who hired our firm after they were convicted to pursue a criminal appeal on their behalf. In one case, after having reviewed the case file leading up to the trial (as well as the trial transcripts and other materials) we decided that there were issues that heightened the likelihood of ultimate success during the appeals process and may warrant having the conviction reversed.

In that instance, with the defendant’s authorization, we sought to stay the criminal appeal while filing a CPL 440 motion before the trial court. In some instances, we were able to withdraw the criminal appeal. This was because we were able to resolve the case at the trial level by filing a 440 motion. In other cases, we created a full record before the trial court, which then made the issue “ripe” for review by the appellate division.

Why Aren’t All Issues Related to the Case Ripe for Appellate Review?

The complete answer is very detailed and complex, but the short answer would be that certain statutory issues (unless objected to by trial counsel and the trial court was given an opportunity to correct the issue) would not be proper to be brought to the appellate division.

#1) Putting the Onus on the Defense Attorney

One of the reasons that certain issues may not be ripe for appellate review is to discourage defense attorneys from allowing certain issues that arise during trial and go uncorrected; this acts as a safety net for appellate reversal in the event of a conviction.

#2) Preserving Judicial Resources

Another reason is the theory that issues corrected at the time that they occurred preserve judicial resources. Therefore, a case will not we put on an appellate calendar if the issues known to defense counsel or the prosecution during the trial were fully addressed at the trial court level. The goal is for a criminal defendant to have a fair trial at the first go round if possible.

What is the Difference Between Assigned Counsel and Retained Counsel?

One of the major distinctions during the appellate process between assigned counsel and retained counsel is that assigned counsel is generally limited to reviewing what’s on the record.

As retained counsel, we will not only review what’s on the record in the process of preparing an appellate brief, but we will also keep an eye open for potential issues that can be raised in a collateral attack and, with the defendant’s authorization, will file a collateral attack when appropriate.

Just for sake of clarity, the reason why assigned appellate attorneys generally do not review the record for matters that may need to be further developed and addressed in a collateral attack is because, in New York State law, when it comes to collateral attacks on a criminal conviction, the right to counsel only attaches if a hearing is granted by the trial court.

When the state is funding representation for appellate purpose, it does not give appellate counsel a blank check to pursue issues that may or may not have merit.

In this day and age, that distinction is extremely important, as it has always been, but more so now because of how many defendants wish to raise claims of actual innocence which can only be done by way of collateral attack on a criminal conviction.

This is why, in many instances, when we hear of wrongful convictions, the reversal of the conviction only occurs well after the direct appeal.

What Happens After an Appellate Court Has Decided?

On a state level, once a criminal appeal has been decided by the appellate division and the appellate division as either affirmed, modified, or reversed a conviction, the next court that could consider a criminal appeal would be the New York State Court of Appeals.

While every criminal defendant has a right to have the appellate division review his criminal conviction, review by the New York State Court of Appeals is only permitted by “leave of the Court.”

What is “Leave of the Court?”

“Leave of the Court” means that, within 30–days of the decision affirming a criminal conviction, appellate counsel is obligated to file what is called a “leave application” to the New York state Court of Appeals.

The New York State Court of Appeals grants less than 5% of leave applications filed related to criminal cases. However, in the rare instance that the leave application is granted in a criminal case, the appellate counsel is then obligated to file pre–pleading submissions and ultimately file a second brief with the New York State Court of Appeals. The second appeal would be an attempt to argue why the appellate court’s decision to uphold the decision was wrong.

After a defendant’s appeals application is either (1) denied or (2) the appeal is heard and the conviction is affirmed, the defendant has one year from that time to file a federal writ of habeas corpus.