Criminal appeals are a common occurrence after a defendant is convicted and sentenced.

A criminal conviction can disrupt your life and can have lasting effects long after your debt to society is paid. However, when the circumstances of your trial had errors or there was some other misconduct that caused you to be convicted, it can be even more devastating. 

Appeals are designed to remedy these issues and ensure that all defendants had a fair trial.

Experience and Skill Representing Individuals in the Appeals Process

If you need to file any type of criminal appeal you need legal representation, and you need the Litvak Law Firm. The Litvak Law Firm has handled some of the biggest federal and state criminal appeals. 

Some of the more notable appeals include:

USA v Seleznev – Seattle, Washington – Lead Counsel

One of the biggest federal cybercrime cases ever prosecuted in the US. In 2014, Mr. Seleznev, son of a prominent Russian politician, was arrested by US Secret Service agents in the Maldives and brought to the US without an extradition process. The manner of arrest, which many compared to extrajudicial rendition, made headlines around the world, Mr. Seleznev was given the longest sentence in history for a cybercrime offense, 27 years.

The People of New York v Lowe – Lead Counsel

A case involving attempted murder, and aggravated assault conviction which resulted in a 20-year state prison sentence was appealed to the New York Appellate Division, Second Department.

What is a Criminal Appeal?

If a person has been found guilty in a criminal case, he or she can file an appeal with the Circuit Court if they feel that the sentence is too harsh or that they were wrongly convicted.

In simple terms, an appeal is an action of a higher or superior court reviewing the judgment, decision, or actions of a lower court. The purpose is to obtain a review and/or adjustment of that decision.

In order to understand what a criminal appeal is, it is important to first understand what it is not.

A criminal appeal does not mean that the defendant gets to have another trial, a new trial, or any type of do-over. What it means is that the defendant now has the opportunity to question certain issues or question certain aspects of the trial, to show potential errors that may have happened during the trial and influenced its outcome.

There are several outcomes that an appeal can trigger:

  • Typical – Remedies
    • Reversal 
    • Remand 
    • New trial
  • Other Post-Conviction Relief Actions – Remedies
    • Sealing of Records
    • Expungement of Records
    • Restoration of Civil Rights
  • Denial or no change

If the initial appeal does not result in the outcome that the defendant desires, they can further appeal to the State’s Supreme Court of the state of conviction, or to the U.S. Supreme Court which is located in Washington, D.C., and is the highest appellate court in the U.S. court system.

The Supreme Court only accepts a few cases a year. It has no legal obligation to hear every appeal that is filed.

Understanding the Remedies that a Court of Appeal May Issue

The three remedies that the Court of Appeal may typically issue – reversal, remand, or a new trial – each have different implications for the defendant.

Reversal – The conviction may be reversed, and the charges dismissed if the defendant can show that the evidence supporting their conviction was insufficient.

Remand – The case is sent back to the trial court and includes instructions on how to correct an error that was made that affected the outcome of the case. Typically, this happens when the defendant gets an illegal sentence, but other errors can occur as well.

New trial – The court grants the defendant a new trial and the issue that warranted the appeal and remedy will be corrected. For instance, if the defendant claimed, “ineffective assistance of counsel,” they will have a different attorney at their new trial.

The type of remedy that is issued by the Court of Appeal hinges on the grounds on which the defendant bases their appeal. Other post-conviction relief actions may also be granted when a defendant appeals their conviction. They may seek sealing or expunging their record or conviction. They may also seek to receive restoration of their civil rights so that they may vote or have other rights restored that were taken away due to a felony conviction.

Direct Appeal vs. Indirect Appeal

Two types of appeals provide a person who has been convicted of a crime and sentenced a way to challenge the outcome of their trial. They can file a direct appeal or an indirect appeal.

Direct Appeal – The convicted defendant makes a request to the appeals court for a review of the trial to determine if it was indeed fair or if there were errors made. Every state allows direct appeal either by a provision in the state’s constitution or by a state statute – but there is no federal constitutional right that entitles a defendant to an appeal. Direct appeals have a time limit for filing according to the laws of most states.

Indirect Appeal – The writ of habeas corpus is an indirect appeal which means that the defendant does not directly challenge their conviction. They challenge the state’s authority to incarcerate them. There is no time limit for filing a petition for an indirect appeal or “habeas petition.” However, there are some restrictions put in place by Congress for federal habeas petitions regarding the time limit if the defendant intentionally delays the appeal and it can injure the prosecution’s case.

The writ of habeas corpus can also be used to examine the amount of bail that is placed on a defendant, extradition processes, and the court’s jurisdiction. It is a common post-conviction remedy for federal and state prisoners seeking to challenge the legality of how federal laws used to convince them were applied, resulting in their conviction and sentence. 

What are the Grounds for a Criminal Appeal?

There are many reasons that a defendant might seek an appeal for their criminal conviction. Their chance to overturn the conviction relies heavily on the strength of their case which means they need a solid argument backed by strong evidence. Several issues tend to be more commonly used:

  • Violation of the Rules of Evidence – The judge was in error when determining what evidence should be included or excluded during the trial.
  • Insufficient evidence – There was not sufficient evidence to prove the defendant’s guilt beyond a reasonable doubt. The prosecution failed to adequately prove its case, yet the jury convicted.
  • False arrest – The officers lacked the proper authority to arrest the defendant. This can mean that they did not have probable cause to detain or arrest them, did not have an arrest warrant when they made the arrest, were not compliant with the arrest warrant exceptions or violated the search and seizure laws of the state in the events leading up to the arrest.
  • Sentencing errors – Each state has rules that govern sentencing hearings. Judges are required to comply with these rules. 
  • Prosecutorial misconduct – The prosecution acted inappropriately using dishonest or improper methods that were of such a prejudicial nature that the judge was unable to correct it by telling the jury to disregard the improper behavior or striking the prosecutor’s statement or evidence they presented. The key is not the unethical action. It is that those actions caused prejudice against the defendant.
  • Jury misconduct – Members of the jury engaged in illegal or inappropriate conduct that compromised the defendant’s right to a fair trial. This can include one or more jurors refusing to deliberate, conducting their own investigation that extends beyond the evidence that was admitted, or purposely hiding information that is relevant to the case and could affect an impartial deliberation.
  • Ineffective Assistance of counsel – The defendant’s attorney was incompetent to the extent that it affected the outcome of the case and deprived them of their sixth amendment right to a fair trial. In order to appeal on these grounds, the defendant must prove that:
    • The deficiency of their attorney’s conduct was because their representation fell below an objective standard of reasonableness per typical professional conduct, and
    • The failure of the attorney to act competently resulted in an actual prejudice against the defendant

What do Appellate Judges Look for When They Review a Case?

In the court of appeals, the judges are referred to as appellate judges.  When an appellate judge is reviewing a case, there is certain information that they must look for in order to make an accurate determination regarding the post-conviction remedy or action on the case.

The appellate judge reviews the lower court’s decision in the case. They must weigh the action of that court against the law and make sure that the court correctly applied the law. As they review the case, they look at all the areas that may be compromised or affected and determine whether or not those actions caused prejudice against the defendant and affected the outcome of the case.

When the defendant files their appeal, they must provide the grounds on which they are basing the appeal and give strong supporting evidence to show that those grounds affected their case in either the conviction or sentencing.

The appellate judge is tasked with reviewing the defendant’s argument, examining the evidence they present, and lining it up with the court records. They review transcripts, documentation of evidence, the evidence presented by both the prosecution and the defendant, and any testimonies.

They do not decide the outcome of the case, but instead, make a determination on whether or not to return the case to the lower court for the necessary post-conviction remedy.

New York State Court of Appeals

The New York appeal process is complex and lengthy. The judge must examine the entire trial very carefully, paying attention to every detail. Their job is to look for errors that could impact the verdict of the case. 

Not all errors warrant an appeal and not all errors are considered in an appeal. They are only examined if it is believed that they affected the outcome of the case, meaning they affected the defendant’s conviction or sentence.

The Appellate Division in New York handles all felony appeals from the New York court system. If the defendant has both a felony and a misdemeanor in their indictment, then both are handled together.

There are four judicial departments within the New York Appellate Division. They are broken up by county:

  • First Department – Counties
    • Bronx
    • New York 
  • Second Department – Counties
    • Duchess
    • Kings
    • Nassau
    • Orange
    • Putnam
    • Queens
    • Richmond
    • Rockland
    • Suffolk
    • Westchester
  • Third Department – Counties
    • Albany
    • Broome
    • Chemung
    • Chenango
    • Clinton
    • Columbia
    • Cortland
    • Delaware
    • Essex
    • Franklin
    • Fulton
    • Greene
    • Hamilton
    • Madison
    • Montgomery
    • Otsego
    • Rensselaer
    • St. Lawrence
    • Saratoga
    • Schenectady
    • Schoharie
    • Schuyler
    • Sullivan
    • Tioga
    • Tompkins
    • Ulster
    • Warren
    • Washington
  • Fourth Department – Counties
    • Allegany
    • Cattaraugus
    • Cayuga
    • Chautauqua
    • Erie
    • Genesee
    • Herkimer
    • Jefferson
    • Lewis
    • Livingston
    • Monroe
    • Niagara
    • Oneida
    • Onondaga
    • Ontario
    • Orleans
    • Oswego
    • Seneca
    • Steuben
    • Wayne
    • Wyoming
    • Yates

Appealing a Criminal Conviction in New York

The appeal process in New York typically follows a standard pattern:

  • The defendant is arrested for a crime, charged, and goes to trial where he or she is convicted.
  • A pre-sentence report on the defendant is prepared by the Department of Probation. This is used by the judge in the determination of the defendant’s sentence.
  • The defendant is sentenced by the judge.
  • Within 30 days of their sentencing, the defendant or the defendant’s attorney files a notice of appeal with the clerk of the court where the case was originally tried, but sometimes it may be with the Court of Appeals.
  • The prosecutor is served with a copy of the notice of appeal.
  • The defendant’s attorney thoroughly researches the entire court transcripts regarding the conviction, as well as other applicable information and evidence to identify any errors that may have been made.
  • The defendant’s attorney prepares the appellate brief, an extensive document that explains in detail the errors committed during the trial and how they impacted the outcome of the trial.
  • The defendant’s attorney delivers the appellate brief and oral argument before a panel of judges at the Appellate Division.
  • The judges of the Appellate Division review all of the evidence presented to them by the defendant’s attorney as well as all relevant documents and evidence from the trial and make a determination on the appeal.
  • Oral arguments may also be heard by the Appellate Division Judges.  

Filing an appeal on your criminal case requires knowledge of the inner workings of the court system. It is not something that you should try to do on your own. 

A criminal defense attorney can help make the process go much easier and elicit a more effective outcome. You need the experience, skill, and professionalism that you get from The Litvak Law Firm. Mr. Litvak has the experience and knowledge to help you get the best possible outcome for your case and appeal. Call today at (718) 989-2908 and get the legal representation you deserve.