A person convicted of a crime in the State of New York has an automatic right to appeal their conviction. However, in order to exercise that right, a notice of appeal must be filed within 30 days of the conviction date.
An appeal is not a second trial. In an appeal, the appellate court sits in the place of the trial judge and reviews what took place in the trial to decide whether it was conducted properly, the rights of the accused were protected and there were no legal defects affecting the verdict.
An appeal is a written argument, known as an Appellant's Brief, that is filed with an appellate court. The argument is based on the trial transcript, legal research, and consultations with the client. I often consult with trial counsel to discuss what issues should be raised for appellate review.
Appeals of misdemeanor convictions are filed with the Appellate Term, and appeals of felony convictions are filed with the Appellate Division; both of these courts are located in Brooklyn.
After Appellant's Brief is filed with the appellate court, the District Attorney will file its own written argument in opposition, known as a Respondent's Brief.
The appellate court will review both briefs and issue a written decision. Depending on that decision, a conviction or a sentence may be affirmed, reversed or modified.
WHAT ARE CIVIL APPEALS?
When a person is involved in litigation that does not end favorably, they may consider appealing a court's decision. It is vital to note that a notice of appeal must be filed within 30 days of the filing of a notice of entry of the decision to be appealed.
Appeals of decisions in Supreme Court or Family Court are filed with the Appellate Division in Brooklyn. The party bringing the appeal is called the Appellant; the party responding to the appeal is called the Respondent.
The determination of whether or not to appeal a decision in a civil matter is very fact-specific and will vary from person to person and from case to case. A consultation is often the best way to decide whether to proceed or not.
On the other hand, sometimes a client has a favorable outcome in a civil trial - only to be served with an Appellant's Brief filed by their adversary. Time is of the essence, and a Respondent's Brief must be prepared and filed promptly.
Once both Appellant's Brief and Respondent's Brief are filed, the appellate court will issue a written decision. A verdict or decision may be affirmed, reversed or modified, or the case may be sent back to the trial court for further proceedings.
WHAT ARE POST-JUDGMENT CRIMINAL MOTIONS?
While an appeal is a review of what took place in court during a trial, sometimes issues come up outside the courtroom that affect the administration of justice in a particular case.
New York State has a mechanism, Criminal Procedure Law Section 440, which addresses some of these situations. A 440 Motion, which can vacate a conviction or modify a sentence, is brought to the trial court.
Because 440 Motions are very fact specific, please reach out for a consultation to explore whether a motion would be appropriate in your case.
WHAT ARE ADMINISTRATIVE APPEALS?
Unlike appeals in criminal and civil trials, which are brought in appellate courts, appeals of agency determinations - like DMV or Board of Parole - are done through an administrative process.
Feel free to reach out to discuss your particular circumstance.
WHAT ARE ARTICLE 78 MOTIONS AND ORDERS TO SHOW CAUSE?
An Article 78 Motion is brought against a governmental entity either to mandate the agency to do something, or to prohibit an agency from doing something. If you are in litigation and your attorney feels and Article 78 Motion is appropriate, I would be happy to consult with them.
An Order to Show Cause is an emergency motion that is occasionally brought in an appellate case to stay sentence pending appeal. While they are generally reserved for only the most serious matters, we can fully discuss the process during an appellate consultation.
CAN NEW YORK CRIMINAL CONVICTIONS BE SEALED?
In 2017, New York State joined a growing list of states recognizing that people who have a very old criminal conviction should not have it adversely affect them forever.
Under Criminal Law Section 160.59, a defendant may apply to seal a felony conviction or up to two (2) misdemeanor convictions, if those convictions are at least ten (10) years old and the applicant has no other convictions.
Certain offenses are not eligible for sealing.
Contact my office for a consultation to discuss whether to prepare a sealing application in your specific case.