After Conviction in New York - What are the Options?
by Tom Theophilos, Esq., New York Criminal Appeal Lawyer
Most people have a general understanding that you can "appeal" but what are your options after a finding of guilty? Here is a broad overview of the "post-conviction" world provided courtesy of Thomas Theophilos, Esq.*, one of New York's most prominent criminal appeal lawyers.
After Conviction, but BEFORE appeal
A guilty verdict is only the first part of a conviction. The second part of the conviction is the sentence. The judge's job is to decide the sentence.
But before the Judge is allowed to sentence a defendant, New York State law requires that the Department of Probation prepare a report about the defendant. The fact that the Probation department prepares the report does NOT mean that the defendant is going get probation. It simply means that the Department of Probation has been given the job of preparing these pre-sentence reports.
The judge will be given this report to assist him (in theory) in making a decision about what kind of sentence to give a convicted defendant.
real world note
It is vitally important that a defendant convicted after trial understand that if he admits, during the probation interview, that he was in fact guilty of the crime, that this reduces the chances of being successful on appeal. It is generally believed that admissions of guilt by the defendant have an impact on the appeals judges. It is wise, therefore, for convicted defendants to have detailed and specific discussions with their trial attorney regarding how the Probation Department interview will be handled.
Procedure for Filing an Appeal
In New York State, a person convicted after trial has an automatic right to appeal his conviction to the Appellate Division. To do this, the defendant, through an attorney, must file with the appropriate court clerk a notice of appeal within 30 days of the date he is sentenced. A copy of that notice of appeal must also be served on the prosecutor within that same 30 day period. There is nothing to lose by filing a notice of appeal and it should be done in every case in which a person is convicted after trial. The defendant must say "yes" that he wants to appeal, otherwise he risks losing his right to appeal. In some circumstances, when there is a dispute about whether or not the defendant requested an appeal, the Court may still permit a notice of appeal to be filed after the 30 day deadline. The safest approach, however, is simply to make sure the notice of appeal is filed within 30 days.
What happens if you WIN an appeal
Most of the time, winning your appeal means that your case will be returned to the trial court for a new trial. Winning an appeal is usually NOT the same as having your case dismissed. Appeals generally are filed based on procedural errors in the trial. Therefore, the solution is usually to try the case over again and to make sure the original error is not repeated.
One exception to this rule is a reversal on the basis of insufficient evidence. Such reversals occur when the appellate court concludes that no rational jury could have convicted a defendant based on the evidence presented at trial. If a conviction is reversed for insufficiency of the evidence, then the case cannot be retried. Instead the entire case is dismissed. Reversals for insufficiency of the evidence are extremely rare. Less than one percent of cases that are appealed are reversed on the grounds of insufficiency of the evidence.
Click here for a description of how New York Criminal Appeals attorney, Thomas Theophilos, won a reversal in the New York Second Circuit Court of Appeals based on a claim of insufficiency of the evidence.
What happens if you LOSE an appeal
If you lose your appeal in the Appellate Division, then you can ask the Court of Appeals (New York's highest court) to hear your case. A convicted defendant, however, does not have an automatic right to appeal a case to the Court of Appeals. Instead, your 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 then the defendant may ask that the United States Supreme Court hear the case.
The United States 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 State Law, the United States Supreme Court will have nothing to do with it.
real world note
Permission to appeal to the New York State Court of Appeals is only rarely granted. The Court of Appeals hears but a handful of criminal cases in any given year. Receiving permission to appeal to the United States Supreme Court is even more unlikely, and will only be granted in the rarest of circumstances.
Arguing the Appeal
In order to appeal a criminal case, your appeals lawyer will need to order the transcript of the trial. The trial transcript is a significant expense, often costing several thousand dollars by itself. An appeal in a criminal case (done properly) involves an enormous amount of time spent reviewing transcripts, doing legal research, and writing. Appeals work is highly specialized and labor intensive work.
All arguments on an appeal must be included in a written brief. Oral arguments can then be made to the court once the brief has been submitted.
There are two types of issues that can be presented to the Appellate Division. They are issues of law and issues of fact.
An issue of of fact, quite simply, refers to the facts of the case. For example, the question of whether person X acutally hit person Y would be an issue of fact to be decided by a jury.
An issue of law is a legal conclusion or decision by a judge presiding over the trial. For example, whether the judge violated the rules of evidence when he let a prosecutor elicit testimony from a witness over the objection of defense counsel would be an issue of law.
real world note - fact versus law issues
It is next to impossible to convince the Appellate Division to reverse a conviction based on an issue of fact. Most successful appeals are based on legal issues. The Court of Appeals can only reverse a conviction based on an issue of law. It cannot reverse a conviction through the exercise of any factual review power. The same is true for the U.S. Supreme Court.
What to Look for in an Appeals Lawyer
Being an effective appeals lawyer requires different skills from those required for a trial lawyer. Appeals work requires a studious devotion to the law and the ability to write effectively and persuasively. Appeals work is not the place for seat of the pants, heat of battle legal arguments that you might find at the trial level. Therefore, the people who have the skills to be effective under the battlefield-like circumstances presented by criminal trials, are not necessarily the people who have the skills to be effective in the more methodical, studious world of appeals.
Many excellent trial lawyers will have an association with an appeals lawyer whom they call on for advice regarding legal issues.
real world note - How I Practice
For example, I have an association with trial attorneys in new York City and elsewhere in New York State. Although I periodically communicate with these attorneys, I purposely have an office that is in another building from the trial lawyers. The reason for this is that trial lawyers maintain a hectic and distracting practice. They are constantly in and out of court with clients and witnesses coming and going. They live in a chaotic and hectic world. They are preparing for nearly daily battles in court and it is a noisy hectic business.
I, on the other hand, will take just a handful of cases at a time, and I will study them over and over again for hours on end and for weeks at a time until the cases become like extensions of my own mind. Eventually, the facts of the cases and the law relevant to them become as familiar to me as my own hands. This single minded dedication to just a handful of cases coupled with my years of experience is what enables me to create the unique arguments that may just win the appeals.
In my view, it is impossible (or at least rarely possible) to be both an effective trial attorney and an effective appeals lawyer at the same time. The two professions require radically different approaches and mindsets. An effective appellate attorney needs to set aside large blocks of time to concentrate on a single issue without having his thought process constantly interrupted with court visits and telephone calls.
Furthermore, a good appellate brief takes over 100 hours to prepare. If you speak to an appeals lawyer who tells you he can complete your brief within a week of being retained, then you should carefully consider consulting with other lawyers.
There are actually few attorneys who limit their practice to appeals. The often poor quality of appellate briefs that are submitted to appeals courts demonstrates this.
One way to see if your appeals lawyer is doing his job is to try calling him at his office. Most of the time, you should be able to find your appeals lawyer in his office. If you find yourself having to leave messages frequently on a voice mail machine, it may be because he is out being a trial lawyer instead of being in his office working on your appeal.
It should not be of great concern where your appellate lawyer's office is. Appeal work is essentially office work. Therefore, it is common and perfectly reasonable to find an appellate lawyer who may not live in the same city as the location of the case. I accept cases from all over New York State, for example, and it poses no real difficulty. I may have to travel one day briefly for an oral argument now and then, but I am primarily able to do my job from my office.
Likelihood of Winning Your Appeal
The plain fact of law, statistics, and life is that most criminal appeals are lost. In fact, over 90% of all appeals by criminal defendants are lost. I tell this to all my prospective clients up front because I want them to have a realistic understanding of the likelihood of success BUT ALSO to impress upon them the need to DO IT RIGHT.
If the odds are against you, that doesn't mean you should give up. It just means that you need to be sure that you make the best possible effort. Half-hearted efforts have no business in an appeal.
Here are a couple of reasons it is generally considered difficult to be successful on appeal in a criminal case:
First, there is an underlying sense that the defendant has already had his day in court.
Second, it is more than simply a mistake at the trial that must be demonstrated. Trials are run by people. People make mistakes. The law does not require that anyone get a perfect trial. If the existence of a mistake were all that were required to obtain a reversal on appeal, then virtually every criminal case would be reversed. There must be many mistakes, or mistakes considered particularly serious, and the mistakes must have been objected to by the trial lawyer precisely at the moment they occurred.
Trial lawyers will often intentionally not make objections during the course of a trial for tactical reasons. Trial lawyers, after all, are trying to win the trial and are required to make numerous decisions in rapid fire succession under enormous pressure. Sometimes a trial lawyer is placed in a situation in which he must choose between making a perfect record for appeal or doing something that may increase the likelihood of success at trial. This is not necessarily improper, and in fact quite legitimate. Forced to choose between trying the case to win or trying the case "for appeal" it is almost always the wisest choice to try the case to win. The trial lawyer who tries cases to obtain the cleanest appellate record may well find that his records are tested on appeal far too often.
What I tell my clients who ask about the general likelihood of success on appeal is that I will promise to devote my heart and soul and all my legal experience to the case. I will spend an enormous amount of time evaluating the case and crafting the arguments I think will maximize the chances for success. But it must always be understood that, in general, success on appeal is a longshot under the best of circumstances. I do not shrink from these fearsome odds. I thrive on them, as do most successful appeals lawyers. I believe that I have the skills and experience to maximize my clients' chances for success.
If the lawyer you are interviewing tells you something radically different, promising great success or a high percentage of past success, then you are likely dealing with someone who is behaving recklessly or dishonestly. You probably don't want to trust an appeal to someone who is behaving recklessly or dishonestly. The hopes, dreams, and very freedom of you or someone you care about will rest within the hands of the lawyer you hire to handle the appeal.
Make the right choice not because it will guarantee you success, but because it will guarantee you the highest likelihood of success in a long odds situation.
Other Post Conviction Remedies
Even if you lose an appeal there are still alternatives available under the right circumstances. A Federal writ of habeas corpus may be available if some Federal Constitutional right was violated at the trial.
If there is newly discovered evidence that was not available at the first trial it is sometimes possible to obtain a new trial by filing a "440" motion in state court.
If you lose your appeal at the appellate division, it is sometimes possible to have the appellate court give you a second chance at arguing the appeal. The appellate court will allow a defendant to re-argue an appeal if the first appellate lawyer made serious mistakes in the brief that he submitted to the court. In order to get this "second chance", a new appellate lawyer must file what is referred to as a "petition for a writ of error coram nobis". If it is granted, then the new appellate lawyer can submit a new brief and argue the case all over again before the appeals court. It is extremely difficult to convince an appellate court to grant a petition for a writ of error coram nobis. Indeed, it would not be an exaggeration to say that less than one percent of such petitions are ever granted. Click here to read a brief description of how New York criminal appeals attorney, Thomas Theophilos, won an error coram nobis petition.
These other types of post-conviction remedies are specialized and often require extremely specific grounds before they can be filed. In other words, they don't apply to every case. You need to have your case reviewed by an experienced appeals lawyer in order to know whether any of these special post-conviction remedies will be available to you or your loved one.
*Mr. Theophilos is an independent New York criminal appeals lawyer not affiliated with Shalley & Murray.
**Of course, prior results do not guarantee a similar outcome.
Criminal Appeals in New York State and Federal Court
Independent New York State and Federal Criminal Appeal lawyer Tom Theophilos contributed this article about the options for those who are convicted in New York or Federal criminal court.
Call Thomas Theophilos about your criminal appeal case directly at 866-447-7899 (toll-free) (Office address: New York City Office - 1133 Broadway, Suite 708, New York, N.Y. 10010; Buffalo Office - 1201 Colvin Blvd., Suite 1, Buffalo, NY 14223).