The Basics of Handling a New York Criminal Appeal

October 18, 2018

By Jill K. Sanders, Esq.

As a follow-up to our recent post about the basics of New York’s criminal justice system, here we’ll provide a brief overview of what happens when you appeal a criminal conviction in New York. After a person has been sentenced, a defendant has several remedies available to challenge his or her conviction.


Structure of the Appellate Courts

The New York court system consists of various levels of courts. At the lowest level are the trial courts, which are the finders of fact. These courts are the ones pronouncing the convictions and sentences of criminal defendants.

For misdemeanor convictions, a defendant may file an appeal in the local county court or, in some jurisdictions, there may be an Appellate Term which will handle the appeal. For felony convictions, an appeal may be taken to the Appellate Division. There are four Appellate Divisions, and they each hear appeals from certain counties.

The highest court in New York is the Court of Appeals. A criminal defendant does not have a right to take his or her case to the Court of Appeals – permission to appeal must be granted. The Court of Appeals denies the vast majority of applications to hear appeals. It usually only hears cases where there was a dissenting opinion in the court below or if there is an important question of law.

Finally, any criminal defendant may ask the United States Supreme Court for permission to appeal. This can be pursued after an appeal has been denied by the Court of Appeals (or if the Court of Appeals denied permission to appeal). This is called a request for a writ of certiorari. The Supreme Court will only take an appeal where there is a claim that the defendant’s federal constitutional rights were violated, and writs of certiorari are very rarely granted.


When and How to File a Notice of Appeal

To appeal from your criminal conviction, you must file a Notice of Appeal within 30 days of the date of sentence. This is a strict deadline and, absent good cause, if you miss the deadline you cannot take an appeal. In some circumstances, a defendant may ask permission to file a late Notice of Appeal within a year and 30 days of the conviction. But the best practice is to file a Notice of Appeal within that 30 day window.

Note that there is no harm to filing a Notice of Appeal. A good rule of thumb: when in doubt, file a Notice of Appeal! You can always change your mind later about appealing your conviction. The Notice of Appeal is not an appeal itself. It is just a signal to the prosecutor and the courts that you plan to file an appeal with the appellate court.

Your attorney who represented you in the trial court should help you file a Notice of Appeal. It must served on the prosecutor and then filed with the court which pronounced the sentence (usually two copies). You must also file proof with the court that you served the Notice of Appeal on the prosecutor.


What About the Waiver of Right to Appeal?

Many prosecutors make it a part of a plea bargain that the defendant waive his or her right to appeal. What many defendants and even attorneys don’t know is that there are certain appellate rights that can never be waived.

This is particularly true for constitutional issues, such as the right to due process or to effective assistance. An appeal can also be taken when there is a question of the defendant’s competency. Some speedy trial issues also survive a valid appeals waiver. Further, a defendant cannot waive the right to appeal when the sentence is illegal.

In most cases, however, a waiver of right to appeal means that the conviction and sentence will be final and will not be reviewed by a higher court.


Other Post-Conviction Proceedings

There are other post-conviction proceedings that are not really appeals, but they’re worth mentioning here. Many people have heard of cases where a defendant has been convicted, but years later new evidence demonstrates his or her innocence. A motion to vacate pursuant to Criminal Procedure Law 440 is usually how a defendant gets a court to consider such evidence. This provision of the law also allows for re-sentencing in drug and sex trafficking cases.

A criminal defendant in custody can also file a petition for relief in federal court pursuant to 28 USC 2254. This is a request for a writ of habeas corpus, and such writs deal with violations of federal Constitutional rights. A defendant must exhaust state remedies before filing such a petition.

The Governor of New York has the power to grant clemency in the form of reprieves, commutations, and pardons. Pardons are considered where there is proof of innocence but the courts haven’t vacated the conviction. The Governor may also consider a cases where, in the interest of justice, a pardon is warranted.

Finally, many non-citizens may be subject to proceedings in Immigration Court if they have been convicted of a crime. Note that there may be reason to file a Notice of Appeal for anyone who is a non-citizen of the United States. This is an important issue that should be discussed with an experienced attorney.