This information, which is based on New York law, is intended to provide general information, not to give advice for individual circumstances. It is our aim to make the appellate process more understandable. It is not a substitute for an attorney’s advice or for your own careful study of the rules of the courts involved.
The appeal decision process
Appellate judges are assigned to the case and subsequently review the briefs, record, and the oral argument (if any), before deciding the appeal, typically in a written paper called an “order and decision”. The order will either affirm, modify, or reverse the judgment of conviction, sentence, or the lower court order that was appealed. In the event that the appellate court does not affirm, it may order additional proceedings in the lower court, such as a hearing or a new trial, or it may reduce the sentence, dismiss the charges, modify the conviction itself, or some combination.
Options if your appeal is not successful
In the event that you are dissatisfied with the appellate court’s order, you may ask for permission to file an appeal with the Court of Appeals, the highest court in New York. Permission can be granted by an individual judge of the appellate court (if the appellate court was the Appellate Division) or by an individual judge of the Court of Appeals. In the event that one judge denies your application, you may not make another application to any judge. You will need to ask for permission no later than 30 days after service of a copy of the order with notice of entry upon you or your attorney by respondent, and you can make the request earlier, even before the respondent sends you the order with notice of entry. The permission to file an appeal is granted in a small portion of cases. If you receive permission to appeal, you should then hire an attorney or ask the Court of Appeals to assign an attorney to help you through the process.
Other steps you can take: You have the right to apply for permission to seek review in the United States Supreme Court after permission to appeal to the Court of Appeals has been denied or after the Court of Appeals decides your appeal. Your case might present the type of issue that can be considered by a lower court in a motion to vacate the conviction under Criminal Procedure Law, section 440.10, or a motion to vacate the sentence under Criminal Procedure Law, section 440.20. If you have exhausted all possibilities in the New York State courts, you may apply for relief to a federal district court via a petition for a writ of habeas corpus if your case presents a federal constitutional issue and you satisfy the technical requirements for bringing a case in federal court. All of these procedures have their own set of complicated rules contained in statutes and court decisions. Taking an appeal is a complicated, time-consuming, and expensive process, but it can also be an effective procedure for correcting errors.
Your Right to Appeal Your Conviction and Sentence
Defining an appeal
If you believe that any errors were made in your case, or if you believe that your sentence is too harsh, then you have the right to ask a higher court (referred to as an appellate court) to review the proceedings. This request is called an appeal. The party requesting the appeal is called the appellant, and the opposing party is referred to as the respondent. The appellate court will determine whether errors occurred in the lower court as well as if you should get relief, such as, a new trial, dismissal of the charges, or a reduction in the sentence.
The appeal is NOT a new trial. No witnesses are heard in the appellate court, and no new evidence or facts can be brought to the appellate court’s attention. Instead, the appeal is based on the “record” made (i.e. transcript of the trial proceedings, the trial exhibits, and the papers submitted) in the lower court. Keep in mind that the sentence imposed by the lower court will still go into effect while the appeal is being considered by the appellate court unless the trial judge or appellate court stays the sentence or a part of it (orders that it not go into effect). The order staying the judgement of conviction and sentence might include a requirement to post bail. Even if you pleaded guilty you can still appeal. But, if you pleaded guilty and also agreed to give up your right to appeal as part of the bargain, the appellate court might not be able to consider some or all of your contentions.
Initiating the Appeal Process
The appellate process is initiated after you are sentenced when you “take an appeal” by delivering a “notice of appeal” to the lower court (“filing”) and sending it to the District Attorney (“serving”). Counsel, either retained or assigned in the trial court, should serve and file the notice of appeal on your behalf when requested to do so. Typically, notices of appeal are filed with the clerk of the criminal court. If that court does not have a clerk, then the notice will be filed with the judge. The notice of appeal is a document that informs the other party (respondent) and the court that you desire to have your conviction reviewed in a particular appellate court. The notice of appeal identifies all parties involved in the case and establishes the nature of the appeal. You cannot pursue an appeal if you do not file a notice of appeal. The rules of the specific appellate court that will review the conviction(s) from your lower court might require the service and filing of additional papers along with the notice of appeal. You should be cognizant that each appellate court has its own set of rules that you must follow. You cannot “take an appeal” until after you are sentenced, but the appeal will provide you the opportunity to raise contentions related to not only your sentence but everything that happened up until you were sentenced.
Time Limits for Pursuing an Appeal
You must serve and file your notice of appeal within 30 days after you are sentenced. If you fail to follow this time limit, your appeal most likely will be dismissed. If you were prevented from filing the notice of appeal on time because of improper conduct of a public servant, because of improper conduct or death or disability of your lawyer, or because you could not communicate with your lawyer during the 30 days because you were in prison, you can ask the appellate court for permission to file the notice of appeal late, but only if not more than a year has passed from the time within which the appeal had to be taken.
The Cost of an Appeal
The common expenses on an appeal include attorney’s fees and the expenses associated with obtaining the minutes of court appearances. Additionally, depending on the rules of the appellate court, you might be required to make a copy of a record of the proceedings to send to the court and the respondent. You will also be required to make multiple copies of the brief to send to the appellate court and the respondent. If you believe that you can’t afford to pursue an appeal, you might be able to obtain “poor person status”, which would allow you to forgo many or all of the costs and fees and also might result in a lawyer being appointed to represent you. To obtain this relief, you are required to send the appellate court a request for poor person status which includes a sworn statement showing your personal worth and sources of income. The appellate court will decide whether you have demonstrated that you are unable to pay some or all of the necessary expenses. Even if you hire an attorney for the appeal, you might be entitled to receive certain benefits of “poor person status,” such as a free copy of the transcript, since a decision on poor person status is based on your own financial situation, not that of family or friends.
The Process after Filing a Notice of Appeal
After a notice of appeal is filed, the appellant is required to begin assembling the necessary materials to present an effective argument on appeal. The process of getting an appeal into a form so that the facts of the case and arguments for relief can be presented to the appellate court is called “perfecting the appeal".
In preparing for the appeal, you will need to get the minutes of the proceedings in the lower court that help explain your arguments and you might also need to reproduce a record of the proceedings in the lower court or parts of the record, depending on the rules of the appellate court. You will also need to prepare a brief, which is a document that details the story of the case and presents the arguments why the appellate court should decide in your favor. Depending on the rules of the appellate court, you will be required to serve the transcript and record on the respondent as well as file it with the appellate court. You will always be required to serve a brief on the respondent and file it with the appellate court. The number of copies you are required to serve and file as well as the timing of when this needs to be done depends on the rules of the appellate court.
The respondent will most likely file a brief in response to your brief that argues that the proceedings in the lower court were correct or that any error should not change the results of the case. The respondent can also file additional papers from the record that were not included in the papers you sent, if they believe the appellate court should review those papers in deciding the case. You have the right to file a brief answering the respondent’s brief (referred to as a Reply Brief), but you are not required to do so. No further briefs beyond the reply brief are allowed to be filed with the appellate court.
Once all of the briefs have been filed with the appellate court, the next step will be either the oral argument (an oral presentation made to one or more judges from the appellate court) or submission of the case without argument. The oral argument is not required, but is utilized to provide the parties with the chance to focus the court’s attention on the strongest aspects of their cases. The oral argument also allows the parties to answer any questions the judges deciding the appeal might have. If you are being represented by an attorney, then the attorney will present the oral argument. If you do not have an attorney and you are able to come to court, then you can present the oral argument. It is important to note that an appellant who is in prison will not be transported to the appellate court to make or listen to the oral argument.
Appeals Involving “The People”
Under specific limited circumstances, The People can appeal rulings in your favor (such as when the lower court dismisses the case). In that case, the People will be the appellant and you are the respondent. As appellant, the People have the same requirements as any other appellant. If the People do serve you with a notice of appeal, it is important for you to obtain legal representation for the appeal. You can hire a lawyer or you can ask the appellate court to assign you a lawyer. As a respondent, it is not your responsibility to prepare the record or obtain the transcripts from the trial court. The appellant is required to send these papers to you as well as its brief.
Serving in the Federal District Courts, Second Circuit Court of Appeals, New York Supreme Courts in Manhattan, the Bronx, Brooklyn, Queens, Nassau, Westchester, Broome and Onondaga Counties, as well as the Appellate Division First, Second, Third, & Fourth Departments for Complex Litigation, Appeals, & Negotiation.
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