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.
The Right to Appeal from a New York City Criminal Court Conviction
Immediately after the Judge announces sentence regardless of whether it is by conviction or by plea after trial, the defense attorney will generally advise the client on the record that in the event they want to appeal they have 30 days to file the Notice of Appeal and will hand over written notice on their right to appeal.
If you were pro-se you can request that the Clerk of the Court file the Notice of Appeal on your behalf. In order to do so, you must send written notice to the Criminal Court Appeals Bureau.
If you are without funds to pay for the appeal and/or an appellate lawyer you must write to the Appellate Term requesting that counsel be assigned to you for the purpose of the appeal. This letter should be sent directly to the appropriate Appellate Term.
In this letter it should also be stated that you are requesting to appeal upon the original record.
How To Appeal From A New York Criminal Court Conviction?
The Criminal Court Appeals Bureau is located in 346 Broadway, Room 400S New York, NY 10013. The number to the Criminal Court Appeals Bureau is (646) 386-4949. This is also known as the Summons Court for Manhattan and Brooklyn. If you are convicted in either New York Criminal Court (Manhattan) or the Bronx Criminal Court then your appealing to the Appellate Term – Supreme Court – First Department. If you are were convicted in Kings Criminal (Brooklyn) Court, Queens Criminal Court or Richmond (Staten Island) Criminal Court your appealing to the Appellate Term – Supreme Court – Second and Eleventh Districts of the Second Department.
Under Section 460.10(1)(a) of the Criminal Procedure Law (“CPL”) the Clerk of the Appeals Bureau is the “Clerk” referred to in said section. A convicted defendant is authorized by right to appeal a conviction or a sentence under Section 450.10 of the CPL within 30 days after sentence is imposed. The defendant or defendants counsel must file the Notice of Appeal in duplicate along with proof of service on the Assistant District Attorney or whomever the appropriate prosecutor was. The proper procedure is to first serve the District Attorney’s Office and then the Criminal Court Appeals Bureau. This way the appeals bureau copy has the appropriate stamp on it. If not, the proper method is to attach an Affidavit of Service.
Unlike an appeal to the sentence of the conviction, an appeal from an Order denying a Motion to Vacate a Judgement under 440.10 of the CPL or to set aside a sentence under CPL 440.20 is only authorized by permission. See CPL 450.15. An Application for a Certificate Granting Leave to Appeal, is made to the appropriate Appellate Term. The Application must be made within 30 days after service upon the defendant of a copy of the Order fr which the defendant seeks to appeal, and must be on reasonable notice to the District Attorney’s Office. The Application must be in writing, must set forth questions of law and/or facts to be reviewed and must contain a statement as to whether or an application for this type of relief has been previously been made before. Only one application can be made. Once the defendant obtains the appropriate certificate, the defendant and/or defense counsel must file within 15 days of the issuance of the certificate a written Notice of Appeal. Again, the Notice of Appeal must provide proof of service upon the District Attorney’s Office.
The Record on Appeal must be filed with the Clerks of the Appeals Bureau within 120 days after the imposition of the sentence. It must be printed or typed. The Record on Appeal must include the following:
Documents Needed to be Filed with the Appellate Term
In the First Department you must file a Notice of Argument plus four copies of the brief. A copy of the brief must also be served on the District Attorney’s office.
In the Second Department you must file a Note of Issue plus three copies of the brief. A copy of the brief must also be served on the District Attorney’s office.
The respective appellate term provides the details of how the papers should be organized here:
60 Centre Street, Room 401
New York, NY 10007
141 Livingston Street
Brooklyn, NY 11201
In the event you can not afford to pay the filing fees and other related costs then an application for the Right to Appeal as a Poor Person must be made to the appropriate Appellate Term.
If you want to move for an Order Staying Judgement of Sentence of the Criminal Court the request must be made on reasonable notice to the District Attorney’s office and is made to a Supreme Court Judge in the County in which the Judgement was entered. No more then one application to Stay Judgement of the Sentence of the Criminal Court can be made. CPL 460.50(3).
Todd A. Spodek is a NY criminal lawyer with Spodek Law Group P.C. Our office is located at 100 Church Street, 8th Floor New York, NY 10007. Our office is open 24/7 and we can be reached at (888) 829-1365
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