1. When a Defendant May Appeal a Conviction or Sentence
  2. Grounds for Appeal to the Appellate Division
  3. Get an Appellate Attorney

When a Defendant May Appeal a Conviction or Sentence in New York

A conviction for an offense is not the end of the line for a defendant in New York. State law provides for appeal of a judgment of conviction or of the sentence imposed. For death penalty cases, a defendant may appeal directly to the Court of Appeals, which is the highest court in New York. In non-death penalty cases, a defendant found guilty after trial has an appeal as of right to the intermediate Appellate Division of the trial court (supreme court) if the offense was a felony. For misdemeanor cases, the appeal is to the county court appellate division. The appeal may challenge an order of the court or the judgment of conviction. A defendant may appeal a sentence as of right if the appeal is based on a claim that the sentence was 1) harsh or excessive or 2) invalid as a matter of law.

A defendant found guilty may seek permission to appeal to the intermediate Appellate Division if the appeal is based on 1) a denial of a motion to set aside or vacate a sentence; or 2) a claim that the sentence imposed was harsh or excessive even though made in accordance with a plea agreement; or 3) a challenge to a sentence not based on a claim that the sentence was harsh or excessive or was invalid as a matter of law.

An appeal from a decision of the Appellate Division goes to the New York Court of Appeals. However, no appeal as of right exists; a defendant must obtain permission from the Appellate Division or the Court of Appeals. The Court of Appeals in more limited in the issues it will consider, such as the constitutionality of a state law or an important question of state law, and its decision to grant or deny an appeal is final.

  1. When a Defendant May Appeal a Conviction or Sentence
  2. Grounds for Appeal to the Appellate Division
  3. Get an Appellate Attorney

Grounds for Appeal to the Appellate Division

If a legal error occurred in the trial court, and the error was prejudicial to the defendant, the judgment or sentence supports an appeal. At the trial level, a judge makes decisions related to issues of law, while the jury determines the issues of fact. If the judge makes a mistake in deciding an issue of law, that mistake is grounds for appeal. Errors of law may arise at any stage of the trial, including decisions related to pre- and post-trial motions.

Some common errors of law that are appealable include:

  • Pre-trial issues. Decisions on pre-trial issues, such as whether the defendant’s arrest violated search and seizure laws, whether the defendant’s right to a speedy trial has been violated, or whether the defendant is competent to stand trial may be appealed if the court made an error of law in deciding these issues.
  • Improper exclusion or admission of evidence. The trial judge makes decisions on the evidence that the prosecutor my introduce at trial to establish the defendant’s guilt and that which a defendant may introduce to indicate innocence. If the court errs in determining whether evidence is admissible or excludable, this error supports an appeal.
  • Incorrect or prejudicial jury instructions. The judge provides the jury with jury instructions that contain statements of the law applicable to the case. An error in a jury instruction may support an appeal.
  • Plain errors. A plain error is an error by the court that is so obvious and egregious that it supports an appeal. A plain error may exist if, for example, the judge expresses an opinion on the defendant’s guilt.
  • Jury misconduct. A defendant may appeal a conviction if the jurors engaged in misconduct, such as talking about the case with non-jurors, considering evidence other than that presented as trial, taking a bribe, or deciding a case by lot rather than by the vote of each juror.
  • Prosecutor misconduct. In some cases, the behavior of the prosecutor may support an appeal. If the prosecutor refers to evidence that the court deemed inadmissible, comments on the defendant’s exercise of his or her constitutional rights, or withholds exculpatory evidence from the defense, such conduct supports an appeal.
  • Sentencing errors. New York law defines the sentence that may be imposed for a particular crime and the factors that may be considered in setting the sentence. If the judge deviates from the law, grounds for appeal exist. A defendant may also claim that the sentence was excessive or unduly harsh.
  • Ineffective assistance of trial counsel. A defendant has a constitutional right to the assistance of counsel in the trial. If the conduct of the trial attorney falls below a certain standard of skill such that the defendant is deprived of his right to counsel, the defendant may appeal the judgment of conviction or the sentence.
  • Sufficiency of the evidence. To support a conviction for an offense, legally sufficient evidence must exist. A determination of the sufficiency of the evidence is not a reweighing of the evidence or the factual determinations of the jury. An appeal based on sufficiency of the evidence must demonstrate that the evidence introduced at trial did not establish all the elements of the offense for which the defendant was convicted.

While most states will not consider issues of fact on appeal, the intermediate Appellate Divisions of the state courts have the constitutional authority to consider the “weight” of the evidence. This means that the Appellate Division may examine the record and sit as a second jury, make determinations on issues of fact, and dismiss one or more counts in an indictment. Such reviews are rare, but if the evidence presented at trial overwhelmingly supports the conclusion that the defendant was not guilty of the offense with which he was charged, a defendant should appeal the conviction based on the weight of the evidence. The New York Court of Appeals does not have the authority to consider weight of the evidence, and the decision of the trial court is final on this issue.

The Appellate Division also has the authority to reduce an otherwise valid sentence if it determines that that “interests of justice” support reduction. This determination, like weight of the evidence, is not appealable to the New York Court of Appeals.

  1. When a Defendant May Appeal a Conviction or Sentence
  2. Grounds for Appeal to the Appellate Division
  3. Get an Appellate Attorney

Get a New York Appellate Attorney

In New York, an appeal may be based on a broad variety of legal errors as well as on the weight of the evidence, but the grounds are not limitless. An experienced criminal appeals attorney will be able to parse the judgment and sentence to determine the issues that will provide the best basis for a successful appeal.