How to Win a New York Criminal Appeal — A Top Appeals Lawyer Explains

How to Win an Appeal in New York

Winning a New York criminal appeal takes knowledge and experience. Your New York criminal appeals attorney must be able to identify legal errors and factual inconsistencies and present them to the appellate court with strong arguments to get a favorable outcome.

Award-winning attorney Aaron Spolin has extensive experience with criminal appeals throughout the state of New York. His team of legal professionals at Spolin Law P.C. has had success in appellate and post-conviction cases by using the strategies described below.

1. Identifying Errors in the Record: Spolin Law P.C. will thoroughly review the record in your case. Most appeals are based on legal or factual errors that went wrong at the trial court level. Errors by judges, prosecutors, or the defense lawyer can result in violations of your rights and an incorrect verdict or sentence.
2. Showing Innocence of Our Client: Spolin Law P.C. will review your case for legal and technical errors that occurred to show that you are actually innocent. These arguments have a great chance of success with the right evidence. However, it requires a thorough investigation of the circumstances surrounding the charges and presentation of evidence.
3. Refuting the Prosecutor’s Case: Prosecutors almost always argue against the defendant in a criminal appeal. After you file your appeal, the prosecutor will likely file their own brief. Spolin Law P.C. will never give the prosecutor the last word. We will reply to their brief pointing out how the state’s arguments are incorrect, inapplicable, or irrelevant.

While prior success does not guarantee the same outcome in a future case, these strategies can be used to win cases when the facts and law allow it. To learn more about the strategies that may apply to your case, call Spolin Law P.C. for a free consultation: (512) 883-9831.

Getting Released on Bail During the Appeal

If you are convicted after trial, you must ordinarily begin to serve the sentence immediately. However, if you file a Notice of Appeal, it is possible to have the court “stay” or stop the start of the sentence. You can ask either the reviewing court or, in some circumstances, the trial court to allow you to be released either on your own or on bail. Whether a stay and release are granted and whether you are released on bail or on your own recognizance are matters for the court to decide. A New York criminal defense attorney’s powerful argument may sway that decision.

New York’s bail/release provisions were significantly amended in 2020 to make it easier for defendants who are awaiting trial to be released before the trial; however, these new provisions, by their terms, apply only to the availability of bail/release pending trial. The provisions of granting or denying release or bail to defendants while their appeals are pending were apparently not affected.

If you appeal to an intermediate appellate court from a judgment or from a sentence of a criminal court, you may request a judge or justice for an order (a) staying or suspending the execution of the judgment pending the appeal, and (b) either releasing you on your own recognizance or fixing bail. The court is allowed to do so unless the defendant received a Class A felony sentence or a sentence for certain Class B or Class C felony sex offense committed or attempted by a person 18 years of age or older against a person less than 18 years of age.

When a stay of judgment and release is requested, the court must “consider the likelihood of ultimate reversal of the judgment.” That means that it must determine whether you are likely to win on appeal. A determination that the appeal is “palpably without merit,” or completely baseless, allows, but does not require, a denial of the application. You will have to research appellate issues that support a reversal of the conviction to convince the judge or justice that the appeal is likely to result in reversal of the judgment or sentence, or at least that the appeal is non-frivolous. That information will be included in an application for bail pending appeal. This is another reason that you should engage an experienced appeals attorney to handle your appeal and application for a stay of the judgment.

If you have questions about getting out on bail or staying your sentence while your appeal is in progress, contact Spolin Law P.C. at (512) 883-9831.

1. How to Win an Appeal
2. New York Criminal Appeals Explained
3. How to File a Criminal Appeal in New York
4. Arguments that Can Overturn Convictions
5. Choosing Your New York Criminal Appeals Lawyer

New York Criminal Appeals Explained

Criminal appeals in New York can be extremely complex. The court system can be confusing and even determining where to file an appeal may be elusive. That’s why it’s important to work with a New York criminal appeals lawyer who understands the system and can successfully guide you through it.

What Is an Appeal?

An appeal is a request for a reviewing or “higher” court to look at the trial or “lower” court’s judgment against a defendant to determine whether the judgment was legally correct. It is an action taken after the defendant is convicted, and so is a “post-conviction” proceeding.

An appeal is generally limited to what happened at trial and/or in court. Issues not raised at trial usually cannot be included in an appeal. They may, however, be raised in another post-conviction proceedings known as a writ of habeas corpus. At Spolin Law P.C. we thoroughly comb through the record to identify issues raised (and issues not raised) at trial, so that we can identify the legal issues that are present and submit a persuasive and compelling appellate brief on a client’s behalf.

An appeal in New York is known as a “judicial peer review” of a trial court’s judgment or sentence. It is conducted by a panel of judges that has the authority to correct errors made by the trial court. This means that a person who is convicted of and sentenced for a crime has a right to have a second court review the conviction or sentence. The second court will review the record of the trial, and the convicted individual may present the second court with arguments in the form of an appellate brief. The appellate brief contains arguments for why a conviction or sentence was improper. The state is also entitled to file an appellate brief.

Criminal Appeals in New York

In New York, the Appellate Division, Appellate Term, and certain county courts handle appeals and are the first level of review in the New York appeal process. These courts are referred to as the intermediate appellate courts.

In New York, a defendant has the right to appeal certain matters to an intermediate appellate court. These matters include:

1. A judgment made by a judge or jury of a lower court.
2. A sentence imposed by a lower court.
3. A sentence including an order of criminal forfeiture.
4. An order denying a motion for forensic DNA testing of evidence.

There are two exceptions to appeals for judgments and sentences made to the intermediate appellate court. First, if a judgment includes a death sentence, the case it is appealable directly to the Court of Appeals (New York’s highest court). Second, if the appeal is based solely upon the ground that a sentence was harsh or excessive when the defendant pleaded guilty to an offense and the sentence imposed did not exceed the sentence to which the defendant agreed as a condition of the plea.

In other cases, an appeal may be taken only after obtaining permission from the reviewing court. These cases include:

1. An order denying a motion to vacate a judgment, other than one including a sentence of death.
2. An order denying a motion by the defendant to set aside a sentence, other than one of death.
3. A sentence that is not otherwise appealable as of right.

In New York, the grounds on which an appeal of a sentence may be taken by permission are that the sentence was either (a) invalid as a matter of law or (b) harsh or excessive.

Where Is an Appeal Filed in New York?

Even determining where the appeal should be filed is a complicated process in New York and is one of the reasons that a defendant needs experienced, talented counsel to handle the appeal. For example, an appeal from a judgment or sentence of a supreme court (trial court for felonies) must be taken to the appellate division of the department (New York courts are divided first into departments and then divisions) in which the judgment or sentence was entered. An appeal from a judgment or sentence of a local criminal court located outside of New York City must, with some exceptions, be taken to the county court of the county in which such judgment or sentence was entered.

An appeal from a judgment or sentence of the New York City criminal court must be taken, if such judgment or sentence was entered at a term of the court held in New York or Bronx county, to the appellate division of the first department, and, if entered at a term the court held in Kings, Queens or Richmond county, to the appellate division of the second department; except that if the appellate division of either department has established an appellate term of the supreme court for its department, it may direct that all appeals be taken to that term. These rules reflect only part of the designation of courts to which appeal must be taken and demonstrate the complex rules for determining where to file an appeal.

1. How to Win an Appeal
2. New York Criminal Appeals Explained
3. How to File a Criminal Appeal in New York
4. Arguments that Can Overturn Convictions
5. Choosing Your New York Criminal Appeals Lawyer

How to File a Criminal Appeal in New York

An appeal begins with a Notice of Appeal, two copies of which must be filed with the clerk of the court in which the defendant was sentenced, and one copy of which must be served on the district attorney (not the prosecuting attorney) of the county in which the judgment against the defendant was entered. If no clerk is employed by the local criminal court, the appellant must file the Notice of Appeal with the judge of the court and must also file a copy of the notice with the clerk of the appellate court to which the appeal is being taken.

If the Notice of Appeal is not properly filed or served, the defendant must file with the intermediate reviewing court a request by formal motion to file a late Notice of Appeal. The latest that such a motion may be filed is one year and thirty days after the defendant was sentenced.

Obtaining the Record on Appeal

At trial, a court reporter makes a record of the trial. The record on appeal is a transcript of the proceedings that must be prepared when the defendant appeals a judgment or sentence.

Information from the record will be used to show the following upon appeal:

1. That an error occurred.
2. That the error was “preserved” for review (raised before the trial court).
3. That the error harmed or prejudiced the defendant.

In New York, each appellate division of the department in which the appellate court is located makes its own rules regarding the content and form of the records to be served and filed. Thus, the rules concerning what constitutes the record on appeal vary from division to division. This is another reason that having expert appellate counsel is necessary for a successful appeal.

Appellate Deadlines in New York

You might wonder if there is a deadline to file an appeal. Yes. The deadline for filing a Notice of Appeal in New York is short — 30 days after imposition of the sentence.

Without a Notice of Appeal, intermediate courts of appeal do not have authority to consider an appeal and will likely dismiss any appeal documents subsequently filed. Thus, if a person is convicted of an offense, that person must file a Notice of Appeal almost immediately.

1. How to Win an Appeal
2. New York Criminal Appeals Explained
3. How to File a Criminal Appeal in New York
4. Arguments that Can Overturn Convictions
5. Choosing Your New York Criminal Appeals Lawyer

Arguments that Can Overturn Convictions in New York

Your New York criminal appeals attorney must carefully examine your case for all potential arguments that may be made on appeal. Below are some examples of common arguments that may overturn a New York criminal conviction.

• Insufficient Evidence:
  The state must produce sufficient evidence to support a defendant’s conviction. Each crime has elements defined by the law, and the state must provide sufficient evidence to show that the defendant violated each of those elements. An appellate attorney can ensure that the reviewing court examines the state’s evidence to determine whether it showed that the defendant violated every element of the crime.
• Improper Admission of a Confession:
  A confession from a defendant must meet certain criteria before it is admissible in court. It must be knowingly and voluntarily made, and the defendant must have been told that he or she has certain rights, including the right to remain silent (“Miranda” rights). A confession given while in police custody without a Miranda warning is usually not admissible.
• Admission of Improperly Obtained Evidence:
  Not all evidence against a defendant is admissible in court. For example, evidence obtained in violation of the Fourth Amendment’s guarantee against unreasonable search and seizure is inadmissible against a defendant. The same is true for evidence obtained by an illegal arrest or interrogation.
• Errors in Jury Instructions:
  The instructions a judge gives to a jury must contain an accurate statement of the law that applies to the crime with which the defendant was charged. If the jury instructions do not properly reflect the applicable law, the conviction may be reversed.
• Prosecutorial Misconduct:
  The prosecution is limited in how it may prosecute the defendant. For instance, the prosecutor may not make improper appeals to the emotions of the jury or refer to evidence that has not been properly admitted. Such misconduct may result in reversal of a conviction.
• Failure to Disclose Exculpatory Evidence:
  When the prosecutor investigates a crime and gathers evidence, and it may uncover evidence that is beneficial to the defense. The prosecution is obligated to disclose evidence in its possession that supports the defendant’s defense. Failure to do may result in a reversal of a conviction if the failure to disclose the information was prejudicial, that is, affected the outcome of the trial.
• Double Jeopardy:
  The Constitution guarantees that a person cannot be tried twice for the same crime. This means that a defendant cannot be tried again for the same crime after acquittal. It also means that a person may not be subjected to two punishments for the same offense. A careful review of the charges against a defendant and the sentences imposed may reveal that the Double Jeopardy clause has been violated.
• Denial of the Right to a Speedy Trial:
  Defendants have a constitutional right to a speedy trial, and if a person is not brought to trial within that time, the case can be dismissed. Some factors that appellate courts look at are the length of the delay, the reason for the delay, whether the defendant sought a speedy trial, and whether there was prejudice to the defendant.
• Statute of Limitations:
  Each crime has a deadline by which the prosecution must file charges. If the prosecutor does not bring charges within that time, the case may be dismissed.
• Errors in Jury Selection:
  Certain rules apply to the selection of the jury in a trial. For example, the state may not purposefully exclude jurors of a certain race from a jury. Each party also has “peremptory” challenges to jurors; that is, challenges that are not based on the potential prejudice of the juror but are simply at the will of the state or defense. A court may improperly deny a peremptory challenge, which may be cause for reversal of the conviction.
• Other Issues:
  There are many more arguments that can be raised in a criminal appeal depending on the crime charged, the facts of the case, and the conduct of the trial. A criminal appeals lawyer can see what common or unique arguments may apply to a specific case.

To learn about whether these or other arguments apply to your case, call Spolin Law P.C. at (512) 883-9831 to speak with a criminal appeals attorney.

1. How to Win an Appeal
2. New York Criminal Appeals Explained
3. How to File a Criminal Appeal in New York
4. Arguments that Can Overturn Convictions
5. Choosing Your New York Criminal Appeals Lawyer

Choosing Your New York Criminal Appeals Lawyer

There are many criminal appeals lawyers in New York. It’s important to find one with experience with cases like yours. Your appeals attorney should have the diligence to comb through the record and knowledge to make strong arguments on your behalf. Overturning a conviction in New York takes skill and tenacity.

Spolin Law’s success is largely based on:

• Diligent Research — The firm’s New York attorneys scour the transcript and other evidence to find every possible argument for appeal. Our appellate attorneys are talented at researching applicable laws to support arguments and convince an appellate court that the judgment or sentence should be reversed.
• Forceful Advocacy — We do what it takes to show the reviewing court the validity of the arguments in favor of overturning the judgment or sentence against a defendant. Spolin Law P.C. will do everything legally permissible to show that the judgment or sentence was not a legitimate one.
• Experience Winning Cases — Spolin Law P.C. has won many appeals, resulting in awards and media coverage for our prior cases. Although prior success doesn’t guarantee the same result in future cases, we know what it takes to win.

To learn about ways we can fight your case and speak with one of Spolin Law P.C.’s award-winning attorneys, call us at (512) 883-9831.