The Blanch Law Firm is a group of experienced attorneys with a practice model that ensures your case gets the attention needed for a successful defense. Our group includes a team of specialized criminal appeals attorneys who have extensive experience with the New York and Federal courts of appeals. Our level of experience has allowed us to build relationships with opposing counsel and create a strong reputation in the legal community. By using our practice model, we are able to devote time to your appeal to get a full understanding of all the facts and issues, to research the relevant and most applicable case law to help you succeed in your appeal.
Filing an appeal is often the last or final step in your case to avoid jail time or heavy penalties. Most often appeal comes after trial, plea, or sentencing by making a pleading with the appellate court to overturn a judgment or requesting a retrial or resentence due to some legal error that happened at the trial level. Appeals are heard by the courts of appeals which are different than the trial courts.
Because there a different types of courts, it is important for you to have some understanding of the different courts and what they do. For felony level crimes, your case will take place in the one of the Supreme Courts. Which supreme court your case is assigned to will determine where the alleged crime took place. All of the pretrial and trial matters will take place at this court.
When it is determined that an appeal should be filed, the appeal is filed in the Supreme Court Appellate Division. The location for this court is the same as where the supreme court was located. For example, if you had a criminal case in Manhattan or the Bronx your appeal would then be filed in the First Division; whereas a criminal case in Albany would have an appeal filed in the Third Division.
Reasons You Should Appeal
There are various reason why you may be considering an appeal. Maybe you feel that the judge made an incorrect legal decision and order. It could also be that the sentence you received was beyond the ability of the court. In any event, the decisions made by judges can alter your life, you want to make sure that they are correct. This is why it is important to reach out to an experienced criminal appeals attorney.
Is There A Right To An Appeal?
The state of New York does not provide you with a right of a criminal appeal. However, there have been some opinions that have come from the Court of Appeals that have strongly expressed there a right to appeal in death penalty cases. This was seen in People v. Taylor, where the court said that sentences with death is required are appealable this is because courts have ruled that that statute is unconstitutional on its face. People v. Taylor, 9 NY3d 129, 155 (2007).
There Are Certain Appealable Issues
The issues that are appealable are legal issues rather than factual issues. What this means is that you may disagree with a fact that came out in a trial, but that is a fact. Instead, a legal issue could be that the court made a legal ruling based on an interpretation of the law, and your position is that the court interpreted the issue incorrectly. The closest this could be to appealing a fact is arguing that the judge allowed evidence when it should have been suppressed.
Sentencing From A Plea Agreement
You may have a reason to appeal the sentence that the judge orders after entering into a plea agreement. Generally, plea agreements include a specific term of sentence or a range of sentence. However, there are times when a judge may go outside the restrictions of the plea. Unfortunately, this could mean that you get a longer sentence than expected. You may even get a prison term when you were expecting probation. This types of issues are appealable. However, if a judge orders a sentence that is a the top of the range, that would not be an appealable issue.
Sentencing After Trial
Sentencing after the trial is different than after a plea agreement. This is because there are no agreements to your sentence and the court can order a sentence based on the penalties of the crime of which you have been found guilty. However, there can be instances where the judge orders a sentence that goes beyond the penalties listed in the statute. Sometimes the order by the judge is incorrect. You can appeal a sentence if the sentence ordered went beyond the jurisdiction allowed by law.
Sentencing During Probation and Parole
Your appeal may come at a date much later than when you were originally sentenced. This could happen if you are put on probation and have a violation of your conditions. This violation could cause the judge to order a longer term of probation. Or it could also occur if you have been released from prison and the judge changes your length of probation to a longer term. These longer terms may or may not be legal. Speaking with an experienced Criminal Defense Attorney will help to determine whether you are able to appeal this sentence.
Other Reasons For Appeal
There are other issues that you can appeal as well, such as rulings and decisions by the trial court. These could be evidentiary rulings or suppression of witnesses rulings that happened pretrial or during the trial. However, regardless of when this issues may have occurred, they cannot be appealed until after the trial. When a trial issue is appealed it can often, but not always, be combined with other issues. An example is the argument that the verdict not being supported by the facts due to a previous ruling. It is important to remember that the court does not determine facts or reconsider the evidence, the court relies on the evidence that is provided by the record.
Because of the limitations on what can and cannot be appealed, not just any attorney should be selected to represent you. The Blanch Law Firm has a team that includes experienced criminal appeals attorneys who are knowledgeable in criminal law and appeals and are able to determine the issues that would be in your best interest.
How Does The Appeals Process Work?
There are specific steps that must be taken in order to appeal a case. These are steps that you must take in deciding you want to appeal. Once you make that decision, there are steps that your attorney must make to ensure that your case is appealed.
Notice of Appeal
Before you are allowed to appeal an issue in your case there must be a final order or decision. For the most part, this will come from a trial verdict, but in some rare instances, it can stem from something that occurred during a plea hearing.
To begin the appeals process, you must file a notice of appeal. Be aware that the notice of appeal is not the appeal itself, its merely the start of the process.
As a defendant, you should verbally request to your attorney to file an appeal. It is also in your best interest to give written instruction as well. The notice will be filed with the court. In good practice, an experienced criminal defense attorney will take four copies of the notice and file them with the clerk of the court. The clerk will send the two copies to the appropriate appellate division, and your attorney will keep one copy. Finally, a copy must also be provided to the district attorney as well.
Perfecting Your Appeal
Once a notice is filed your appeal must be perfected. This essentially guarantees that you are in fact appealing, determines the record that will be used and includes the submission of the record, and involves the submission of briefs. In other words, all of your required documents for the court and filings have been submitted and are complete.
A record is essentially the history of your proceedings. It should include all facts, arguments, and decisions. However, there are various types of records that could be submitted with an appeal. Your attorney will make the determination as to what type of record is best for your case.
The brief is a document that contains your legal arguments on the issues. This document does more than alert the court as to the issues you are appealing, specific facts that apply to your arguments, and case law that supports your position as to how the court was in error. The purpose of the brief is to persuade the court that your case should be overturned.
Winning over the court is not that simple. Just as your attorney will be submitting a brief on your behalf, the prosecutor will also submit a brief in order to keep your case as it is. Depending on how well your attorney briefs the issues, and if the law is clearly settled, the prosecutor may stipulate to an issue. A stipulation to an issue would mean that the court would rule in your favor. A strong brief will be important to the success of your appeal.
Making sure that your appeal is correctly perfected requires close attention to detail. Not just any criminal defense attorney will take the time to properly ensure your appeal is correctly perfected. You will need an experienced criminal appeals attorney to make sure your appeal is perfected.
How Does The Court Decide?
There is a possibility that the process stops at the pleading stage. Generally, an experienced criminal attorney would make a request for oral argument. However, the Courts of Appeals can accept or reject this request. A rejection would not be in your best interest. This is because briefs have a limited page number which could result in the court still questioning parts of arguments. If oral argument takes place a lot more argument could be covered and questions will be answered. Generally, an experienced criminal appeals attorney will request for an oral argument.
If the court accepts the case for the oral argument that means that the issues on appeal will be argued in front of a panel of judges. Generally, this consists of your attorney making arguments in favor your issues, but the judge will be asking questions as well. Both attorneys will take turns defending their possession as to why there was or was not error.
The presentation of arguments is just as important as knowing the law because simply reading the brief to the court will result in the not giving them the attention and consideration your case deserves. Having an attorney who has taken the time and diligence to prepare for oral argument is important. The practice model at The Branch Law Firm allowed for this kind of preparation.
When oral argument is done, the court will then make its ruling. However, it almost never happens on the day of oral argument. Rather, it will happen at some later time and there is no specific time for when it must be done. It all depends on the complexity of the issues and arguments. So the ruling could happen up to months after the argument.
Outcomes of An Appeal
There are various outcomes of an appeal. The Appellate Division can reverse issues and remand for a retrial or resentencing. This means that your case will go through trial or sentencing again. In the instance of a retrial, the trial court’s previous decision will no longer apply. So if the court allowed some sort of evidence previously, it would no longer be allowed in the new trial. As for sentencing, the Appellate Division will likely provide the trial court with guidance and the trial court will apply it in giving you a new sentence.
In some occasions, even though rare, the Appellate Division could overturn your conviction. However, in order to do this, the Appellate Division must make specific findings of how you were prejudiced by the lower court’s decision.
The court may rule against you. In this instance, depending on the ruling there could be a possibility of a re-argument or a motion for leave to appeal to the New York Court of Appeals. Reargument would be most common in the instance that you feel the court overlooked an issue. Making a motion for leave to the Court of Appeals means that your case and issues would then be reviewed by the highest court in the state. If the case goes to the New York Court of Appeals, the appeals process will likely start over.
Finally, if these methods do not work. The final step would be to appeal to the United States Court of Appeals. However it is unlikely that they would certify your appeal.
Federal Criminal Appeal
Federal criminal appeals are somewhat similar to New York criminal appeals. However one of the major differences is that the timeline for filing a notice of appeal is shorter, requiring you to file your notice within 14 days of judgment or order being appealed. Even though this may not seem like a big deal, it is. Being aware of deadlines is an important skill that attorneys must have to succeed. You will need a criminal defense attorney who is experienced in federal criminal appeals to ensure that your appeal does not get dismissed based on a technicality.
Another big difference of federal criminal appeals is how long a the process could take. Despite requiring a shorter time to file the notice of appeal and other deadlines as well, the appeal itself can take longer than a state appeal. This is often based on the pace that the federal court. For example, once parties submit briefing, the court will take a few months to determine whether there will be oral argument. If there is an oral argument, the court will take about three additional moths to hold oral argument. Then after oral argument to make its decision this could take additional months. These timelines do not include extensions that could be filed by either party. But an experienced criminal defense attorney can take steps to help the process and possibly avoid delays.
In any event, whether you are facing state or federal charges, deciding to file an appeal is an important decision. The process itself can be difficult as there are specific deadlines that must be met or the appeal will be dismissed. Additionally, the pleadings that must be filed have specific requirements for the type of information that must be included, and size limitations. In the even that your appeal is accepted for oral argument, you will need an experienced criminal defense attorney to represent you in court. The Blanch Law Firm has experience in both state and federal appellate courts to ensure that your appellate issues is adequately heard.
We Can Help
If you or someone you know is appealing a case in state or federal court and is looking for an experienced criminal appeals attorney, please contact The Blanch Law Firm to get in touch with one of our experienced criminal appeals attorneys.