This information explains how to appeal if you were convicted of a misdemeanor, violation or traffic offense in the Criminal Court of New York City, or the district, justice or city courts in Nassau, Dutchess, Orange, Rockland, Putnam, Westchester, and Suffolk counties. The 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 appeal 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.
Defining an Appeal
If you believe that the trial court committed an error in your case, you can appeal the court’s judgment or order to a higher court called “the Appellate Term.” The party requesting the appeal is referred to as “the appellant” and the opposing party is referred to as “the respondent.”
The appeal is not a new trial. No witnesses will be heard and no new evidence or facts will be presented for consideration to the Appellate Term. Appeals are based on the record that was made before the trial court which is comprised of all of the proceedings that occurred and documents that were filed.
The Appellate Term will make the determination whether the trial court committed any error that require further action including a new trial, a new hearing, or dismissal of the charges. The Appellate Term also has the power to send the case back to the trial court to change the sentence or can change the sentence itself. Bear in mind that the judgment and sentence of the trial court both remain in effect while the appeal is being considered unless it is “stayed,” (meaning suspended) from operating during the appeals process. Typically, you are required to make a written request to the trial court or the Appellate Term for a stay.
Determining the Appellate Term that will Hear Your Appeal
There are 2 Appellate Terms in New York State. The Appellate Term for criminal trial courts in Manhattan and the Bronx is referred to as the Appellate Term for the First Judicial Department. The Appellate Term for the Second Judicial Department has 2 separate parts. The Appellate Term for the Second, Eleventh, and Thirteenth Judicial Districts hears criminal appeals from Queens, Brooklyn, and the Staten Island trial courts. The Appellate Term for the Ninth and Tenth Judicial Districts hears criminal appeals from trial courts in Nassau, Dutchess, Putnam, Orange, Suffolk, Rockland, and Westchester counties.
Initiating the appeal process
For an appeal from a judgment of conviction and sentence, the appellate process is initiated when a party “takes” an appeal. Taking an appeal involves serving a “notice of appeal” on the prosecutor and filing it with the trial court. The notice of appeal is required to be filed within 30 days of the date you are sentenced. If you were represented by an attorney in the trial court, your attorney is required to file the notice of appeal when you ask him or her to do so.
The notice of appeal is a document that notifies the other party that you want to have a judgment or sentence reviewed by the Appellate Term. The notice identifies all of the parties involved in the case and establishes the nature of the appeal. An appeal cannot be pursued without this document. In the event that the trial court denied your motion under Criminal Procedure Law (C.P.L.) §§ 440.10 or 440.20, you can only appeal if a Justice of the Appellate Term grants you permission. You can request permission by filing a motion in the Appellate Term and serving a copy on the prosecutor. If you were represented by an attorney in the trial court, your attorney is required to file the motion if you request for him or her to do so.
The prosecutor is also permitted to appeal some orders, including an order dismissing the charges or granting a motion to suppress. If this order is entered in the Bronx or Manhattan and you are represented by an attorney, then that attorney is required to notify you that the prosecutor has the right to appeal. The attorney is also required to notify you if the prosecutor files a notice of appeal. If the prosecutor files a brief on the appeal and no attorney has appeared for you in the Appellate Term, then your trial attorney is required to advise you of your right to hire a lawyer for the appeal, handle the appeal yourself, or request that the Appellate Term to assign you a lawyer.
If an order that the prosecutor can appeal is entered in Nassau, Dutchess, Putnam, Orange, Rockland, Westchester, or Suffolk counties, and you are represented by an attorney, that attorney is required to notify you that the prosecutor has the right to appeal. The attorney is also required to notify you if the prosecutor files a notice of appeal and of your right to hire a lawyer for the appeal, handle the appeal yourself, or ask the Appellate Term to assign you a lawyer.
Stay of judgment pending appeal Criminal defendants generally want a stay of the order or judgment against them pending appeal. A stay can technically be issued by a justice of the Appellate Term or by a justice of the Supreme Court of the judicial district embracing the county in which the judgment was entered. However, in practice, justices of the Appellate Terms do not entertain such motions, but refer the defendant to a justice of the Supreme Court who will act on the application (that is an affidavit or affirmation, a copy of the Notice of Appeal, a copy of lower court’s order, and a receipt for the fee paid in filing the notice of appeal) pursuant to C.P.L. § 460.50. It is important to note that this practice applies only to the initial application for a stay. After a stay has been given by a justice of the Supreme Court, the Appellate Term has the inherent power to extend that stay and will entertain a motion to do so.
Under some circumstances, the People might also want a stay of the order or judgment entered against the defendant. For instance, C.P.L. § 460.40(2) allows for an automatic stay when the people appeal from an order reducing counts of an indictment or dismissing it and directing the filing of a prosecutor’s information.
The Cost of an Appeal
Taking an appeal can be expensive. Although there is no filing fee when appealing a criminal conviction, there can be other expenses including, but not limited to attorney’s fees and the fees associated with transcribing and reproducing a record of the trial court proceedings. In the event that you believe you can’t afford these costs, you might be able to obtain poor person status. The Appellate Term can assign an attorney if you request one and order that you receive a free copy of the transcript. Additionally, many of the costs and fees can be waived or paid by the government. To apply for poor person status, you need to file a sworn statement that lists your assets and income, demonstrating that you are unable to pay the necessary expenses in the Appellate Term. You are also required to serve this application on the prosecutor.
The Process after Filing a Notice of Appeal
The appellant is responsible for ensuring that a transcript is prepared. The appellant then needs to coordinate the “original record” (the transcript and trial court file) to be sent by the clerk of the trial court to the Appellate Term. With the permission of the Appellate Term, an “abbreviated” or “abridged” record, containing “so much of the evidence or other proceedings as it may deem necessary to a consideration of the questions raised on the appeal,” can be filed rather than the original record. The First Department requires that this be done within 30 days of the service of the notice of appeal. The Second Department does not have a time requirement.
The appellant has the responsibility of filing with the court and serving upon the respondent an appellate brief together with proof of service of one copy of the transcript on the respondent. The brief is a document that details the story of your case and presents your arguments related to why the Appellate Term should decide in your favor. The brief should also contain the desired remedy (ex: reversing or vacating the judgment or the sentence, or modification of an order). Researching and writing the appellate brief is hard work, as such, it is often the most costly part of an appeal when you are hiring a lawyer to do it.
Once the appellant files a brief with the court and serves it on the opposing party, the respondent will most likely file a brief in response to the appellant’s brief. Typically, the respondent will argue that the proceedings in the trial court were correct and that any error that might have occurred was not enough to require the Appellate Term to change the trial court’s decisions. The appellant can then also file a reply to respondent’s brief.
In the event that you are appealing to the Appellate Term, First Department, you are required to file a Notice of Argument with the brief, noticing the appeal for a particular “term” of the court; there are 10 terms, each covering about one month. The appeal will be placed on the term whose first day is at least 53 days after the date the appeal is filed. The respondent’s brief is required to be filed no later than 31 days before the first day of the term and you can file a reply brief in response to the respondent’s brief no later than 24 days before the first day of the term. Additionally, the Notice of Argument and brief is required to be filed within 120 days of the service of the Notice of Appeal.
In the event that you are appealing to the Appellate Term, Second Department, then your brief is required to be filed within 90 days after filing the Notice of Appeal. The respondent’s brief is required to be filed 21 days after your brief, and you can file a reply 7 days after service of respondent’s brief. These time limits may be extended by permission of the Appellate Term. Every Appellate Term has specific requirements related to specific information that is required to be included in the brief as well as related to the type of paper that needs to be used, the length requirements for the briefs, number of copies that need to be filed and how many served, etc.
In the event that either the appellant or the respondent requests, the Appellate Term will schedule the appeal for oral argument. This is a chance to stand before a panel of 2 or 3 Appellate Term judges and attempt to focus their attention on the strongest elements of the appeal. The parties can respond to questions from the judges, clear up any confusion that might be in the minds of a judge or alleviate a judge’s concern.
The Decision Process for the Appeal
Once the Appellate Term has reviewed the briefs and record and heard the oral argument (if applicable), it will issue a written “order and decision.” The order and decision will state whether the trial court made any errors that require a different outcome. In the event that noteworthy errors occurred, the order will detail how they will be corrected which might include holding additional proceedings before the trial court, or the Appellate Term might simply reverse or direct the trial court to change the judgment, order, or sentence from which the appeal was taken.
Other Available Remedies after the Appeal
In the event that you are dissatisfied with an Appellate Term’s decision and order, you might be able to seek further review by a higher court called the New York Court of Appeals. These appeals are allowed only after the party has first received permission from a judge of the Court of Appeals to bring an appeal there. You can request this permission by writing a letter to the Clerk of the Court of Appeals and sending a copy to the respondent explaining why you think the Appellate Term was incorrect. Copies of the briefs and the Appellate Term’s decision should be included with the letter.
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An appeal can be an effective way for correcting trial court errors but taking an appeal is a complex, expensive, and time-consuming process. This information is merely intended to serve as a broad outline and general information of the process and does not cover all the rules in each Appellate Term. It is best to appeal with the assistance of an attorney, either one you have hired or one that the Appellate Term assigns to represent you.
You will also be able to get help from the Appellate Term Clerk’s Offices:
Appellate Term, First Department
60 Centre Street
New York, New York 10007
Appellate Term, Second Department
141 Livingston Street, 15th Floor
Brooklyn, New York 11201
Serving the New York Supreme Courts in Manhattan, the Bronx, Brooklyn, Queens, Westchester, and Onondaga Counties, as well as the Appellate Division First, Second, Third, & Fourth Departments for Complex Litigation, Appeals, & Negotiation.
We are available to meet in Manhattan and Syracuse, New York. If you would like to meet outside of these areas, please contact us and we can arrange for a meeting place to discuss your matter.
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