Under New York law, anyone convicted of a felony after trial has an automatic right to appeal their conviction to the appropriate “Appellate Division,” which is essentially a panel of appellate judges.  To begin this process, the defendant, through an attorney, must file a “Notice of Appeal” within 30 days of the date he is sentenced.

The appellate attorney will next obtain a copy of the court reported transcripts of the trial, as well as any other necessary court papers and exhibits, from the court.  The trial transcript is a significant expense, and often costs several thousand dollars.  An appeal in a criminal case involves an enormous amount of time spent reviewing transcripts, researching the relevant legal issues, and drafting legal documents.

All arguments in an appeal must be included in a written brief (drafting a good appellate brief alone often takes over 100 hours).  If appropriate, the appellate attorney may also argue the case in person (in what is known as “Oral Arguments”) before the Appellate Division.  Unlike during trial, an incarcerated defendant is NOT brought to the appellate court when their appeal is heard. 

There are primarily 2 types of issues that can be presented to the Appellate Division: 1) Issues of Law; and, 2) Issues of Fact.  An Issue of Law is a legal conclusion or decision by the Judge who presided over the trial.  An example of an Issue of Law would be whether the Judge made a mistake in his interpretation of the law in allowing the prosecutor to admit into evidence statements made by a co-defendant.  An Issue of Fact, however, refers to the facts of the case.  For example, the question of whether Defendant A actually shot Victim B would be an Issue of Fact that would be decided by a jury.  It is virtually impossible to convince the Appellate Division to reverse a conviction base on an Issue of Fact.  The vast majority of successful appeals are based upon Issues of Law. 
 “Winning” an appeal usually means that the case will be returned to the trial court for a new trial.  Winning an appeal is usually NOT the same as having the case dismissed outright.  Since appeals are generally filed based upon procedural errors (“Issues of Law”) in the trial, the solution is usually to try the case over again and to make sure the original error is not repeated.

 If the appeal to the Appellate Division is lost, a request can be made to the New York State Court of Appeals (New York’s highest court) to hear the case.  A convicted defendant, however, does not have an automatic right to appeal their case to the Court of Appeals.  Instead, the appellate attorney must write an argument that convinces one of the judges on the Court of Appeals (or a judge on the Appellate Division) to give permission to have the case heard by the Court of Appeals.  If the Court of Appeals refuses to hear the case or if they agree to hear the case and reject the appeal, the defendant may ask that the United States Supreme Court hear the case.  The U.S. Supreme Court will only hear issues that have something to do with the United States Constitution.  If the only issues are matters of New York law, the U.S. Supreme Court will not hear the case. 

Permission to appeal to the New York State Court of Appeals is rarely granted; this Court only hears a handful of criminal cases in a given year.  Receiving permission to appeal to the U.S. Supreme Court is even more unlikely, and is granted in only the rarest of circumstances.

It is an unfortunate fact that over 90% of criminal appeals are lost.  Any attorney who says anything to the contrary is either woefully inexperienced or outright lying.  Clients must understand this situation up front so they have a realistic understanding of the likelihood of success.  This should not mean that a convicted defendant should just give up – it does mean that the record must be scrutinized carefully, and, even though the defendant would like everything done as quickly as possible, it is of vital importance that everything is done correctly and that any brief submitted be of the highest quality.  Hiring an experienced appellate attorney with the proper skills and expertise maximizes the chances for success on appeal.

Bassett & Bassett, P.C.
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Central Islip, NY 11722
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The Central Islip, New York, law firm of Bassett & Bassett, P.C., provides legal services and representation for residents of Nassau County and Suffolk County Long Island communities such as Central Islip, Bay Shore, Brentwood, East Hampton, Hempstead, Huntington, Mastic, Mineola, Riverhead, Shirley, Smithtown, Southampton, and Wyandanch, New York.