There are situations where a defendant in a criminal case loses their court battle. They may feel they didn’t get a fair trial for a number of reasons. The defendant then has a right to appeal the decision or sentence they received during their criminal case. When this is done, a defendant is requesting an appellate court to review various aspects of their court case. The appellate court is being asked to look for any type of legal error involving the court’s procedure, conviction, sentencing and more.
In most cases, a notice of appeal must be filed, and the service of notice of the appeal must be given, within 30 days after the sentence is rendered in a criminal case. Legal experts agree that it is unwise to avoid starting the appeal process until the last minute. It is advisable the appeal process be started within one week after the defendant is found guilty by a court. After conviction, it is common for there to be a significant time before a person gets sentenced. The benefit to filing one week after a conviction is if there are any errors, they can be corrected and refiled within the required time period.
When an appeal is drafted in the state of New York, there are a number of things it must include.
*Identification: The appeal needs to contain the case docket number or indictment number. It should also have the name of the defendant.
*Appeal Court: The court where the appeal is being taken needs to be listed.
*Intermediate Order: It must be listed that the appeal is based on the sentence and judgment as well as all intermediate orders that have been made.
*Court: The court that tried the case must also be listed.
Prosecutor and Service of Notice of Appeal
A defendant’s attorney in New York must also serve a copy of the notice of appeal to the prosecutor of the case.
Filing Notice of Appeal
It’s important to realize that filing a notice of appeal is very different from filing a legal argument. The legal argument will be the basis for the appeal. Many consider this a simple thing, but many lawyers make mistakes. When this happens, the consequences for the person convicted of a crime can be very serious. Should an appeal not be filed correctly, or filed after the time limit, the appeal could be dismissed by the appellate court. The lawyer who provided representation for the defendant during the court trial has the responsibility to file a notice of appeal. This must always be done when the lawyer’s client requests it.
Two copies of the notice of appeal need to be properly filed with the appropriate court clerk. It is common for the office of the court clerk to have a stamping machine. This will be used to stamp the documents and serve as proof the documents were filed within the required time period. When additional proof is essential, a person serving notice of appeal can swear out an affidavit of personal service. This will have information about the date, place and even the description of the person who was given the notice of appeal. There are situations where clerks will provide a letter confirming the notice of appeal has been filed with them.
During the appeals process, the defendant becomes the appellant. They will be trying to prove to the appeals court serious errors of law occurred during the handling of their court case. These errors resulted in unfair influence in a jury’s decision as well as the sentence that was given. They will be asking the appellate court to have the decision as well as the sentence dismissed. They could also ask for their case to be tried again or to be re-sentenced.
Reaching A Decision
When determining their ruling on a case, the appellate court will review the case records as well as the briefs that were written by each side involved in the appeal. Many things will be examined. Everything from the opening arguments, court conduct as well as why a conviction or a sentence could be legally in error. Each side of the case will present its views why they believe what happened during the trial was correct or incorrect. An appellant is usually able to file a second brief in response to the government’s position on the issues. It’s possible for an appellate court to hear oral arguments from both sides before reaching their decision.
Todd is a miracle worker who will work tirelessly for you and your family. He is one of the few attorneys i've met - who I earnestly trust to protect me, and who I am happy to refer to our friends and fellow family members. The Spodek Law Group is someone you want on your side, because they will treat you just like family. Todd and his team are available 24/7, and they always answered our calls. Even when we were being irrational, and crazy - they were calm and super helpful. Just call Todd. He gives you a free consultation and is very understanding.- Donna & Robert
140 Broadway, 46th Floor
New York, NY 10005
35-37 36th St,
Astoria, NY 11106
195 Montague St.
Brooklyn, NY 11201