Constantine F. DeStefano, Esq., is pleased to share a brief introduction into the appellate process as well as some of the possible issues he looks for in the transcripts of trial. These issues are for informational purposes only and may or may not apply to your case. |
| Background Information on Appeals1 |
| Q. What is an appeal? |
| A. An appeal is one of the next stages in the legal process after a trial in a criminal, family or civil matter. An appeal occurs when a party believes that an error was committed by the lower court, prosecuting attorney or defense attorney at any time during the proceedings. |
| Q. How does a party begin the appellate process? |
A. An appeal is started by the filing of a Notice of Appeal. In a criminal matter the Notice of Appeal is served upon the People and filed with the court where the judgment or order was entered. In a Family Court matter the Notice is served upon the county agency that brought the petition and filed in the family court where the judgment or order was entered. In addition, any other parties to the matter must be served with a copy of the Notice of Appeal, regardless of whether they may be affected by the appeal. In a civil matter the Notice of Appeal is served upon the opposing party and filed in the court in which the decision was issued. Filing of the Notice of Appeal also requires the payment of any required filing fees. In addition, any other parties to the matter must be served with a copy of the Notice of Appeal, regardless of whether they may be affected by the appeal. Once the Notice of Appeal has been filed the party requesting the appeal is referred to as the Appellant and the opposing party is now referred to as the Respondent. |
| Q. How much time do you have to file a Notice of Appeal? |
A. A party has 30 days to file their Notice of Appeal after they have been served with a copy of the judgment or order to appealed along with a notice of its entry. In a criminal matter the 30-day time line begins to run after you have been sentenced.
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| Q. What happens after the Notice of Appeal is filed? |
| A. Once the Notice of Appeal is filed the filing party must begin assembling the necessary documents, transcripts, and exhibits that will make up the Record on Appeal. After the Record is complete the Appellant will draft an Appellant’s Brief outlining the meritorious issue(s) to be raised on appeal. Thereafter, the Respondent is given the opportunity to draft a Respondent’s Brief. The Appellant then has the opportunity, but is not obligated, to draft a Reply Brief. |
| Q. What is the timeline for an appeal? |
| A. The timeline for filing an appeal varies depending on the matter being appealed, including, but not limited to: the type of case; whether a trial was held in the lower court; the time need to acquire any transcripts, exhibits, and court files; and time needed to research any and all issues to be raised. This process is called “perfecting the appeal.” The timeline for filing briefs varies depending on the Appellate Division your appeal is going to be heard. |
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Q. What courts are appeals taken in? |
| A. New York is divided into 4 departments which hear the majority of appeals from the trial level courts. These courts are called the Supreme Court, Appellate Division. The 1st Department encompasses Bronx and NY County; the 2nd Department includes: Dutchess, Kings, Nassau, Orange, Putnam, Queens, Richmond, Rockland, Suffolk, and Westchester; the 3rd Department includes: 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; and the 4th Department includes: Allegany, Cattaraugus, Cayuga, Chautauqua, Erie, Genesee, Herkimer, Jefferson, Lewis, Livingston, Monroe, Niagara, Oneida, Onondaga, Ontario, Orleans, Oswego, Seneca, Steuben, Wayne, Wyoming, and Yates. |
| Q. Can my sentence/judgment be stayed while I am awaiting appeal? |
| A. In criminal matters, if you have been sentenced to prison that sentence can not be stayed and you can not put up bail in an attempt to avoid going to prison during the pendency of your appeal. |
| Q. What possible outcomes can I expect in my criminal matter? |
| A. An appellate court must either affirm or reverse or modify the criminal court judgment, sentence or order. |
| 1Information obtained from NY CPLR Articles 55 and 57, as well as David D. Siegel, New York Practice, (3d ed. 1999). |
| Potential issues on an appeal2 |
| Q. Was your indictment proper? |
| A. An indictment is formal written accusation of a crime that has been affirmed by a Grand Jury. In order for a Grand Jury to indict a person 1) the evidence must be legally sufficient to establish that the person committed the offense charged and 2) that the Grand Jury had reasonable cause, based upon competent and admissible evidence, to believe that the person committed the offense. |
| Q. Was the sentence received harsh and excessive? |
A. In the interest of justice an appellate court has discretion to determine that a sentence imposed was “harsh and excessive.” Some instances where the appellate courts use this discretion include, but are not limited to the following: where a trial court improperly admitted evidence of a defendant’s prior convictions; where the nature of the crime and a defendant’s threat to society do not warrant the sentence received; where a trial court improperly labeled a defendant as a predicate felon; or where a trial court abused it’s discretion when sentencing the defendant. |
| Q. Was there sufficient evidence to convict you? |
A. The standard for determining whether the evidence presented by the People was legally sufficient is “whether the evidence, viewed in the light most favorable to the People, could lead a rational trier of fact to conclude that the elements of the crime had been proven beyond a reasonable doubt.” 3 Meaning the People must prove each and every element of a crime charged beyond a reasonable doubt. |
| Q. Did the judge abuse his/her discretion? |
| A. A trial judge is afforded discretion in many of the aspects of a trial. However, while judicial discretion is allowed, it never means that a judge can impose its arbitrary will upon the defendant. Meaning a trial judge cannot arbitrarily make decisions concerning the course of the trial or the sentence imposed upon the defendant.
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| Q. What is Double Jeopardy |
| A. The Double Jeopardy Clause provides three separate guarantees to a defendant: (1) it protects against a second prosecution for the same offense after an acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense. |
| Q. Did you receive effective assistance of counsel? |
| A. This question involves whether or not your attorney at trial provided you with adequate and effective representation during the trial process.The standard for ineffective assistance of counsel is that as long as the evidence, the law, and the circumstances of a particular case, viewed in totality of the circumstances, as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met. The basic question is whether defendant received “meaningful representation” and did it prejudice the defendant’s right to a fair trial. 4
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| Q. Did the People violate Brady v. Maryland? |
| A. The People have a duty to disclose, before trial, any information or evidence that is favorable to a defendant’s case. Violation of this duty violates a defendant’s due process rights. |
| Q. Did the People fail to turn over Rosario material? |
| A. Under the Rosario rule, the People must provide at trial to the defense any materials in the People’s possession which contains prior material statements of a prosecution witness. If the People fail to provide Rosario material it may be considered reversible error on appeal.5 |
| Q. Did the indictment charge two or more offenses under one count? |
| A. An indictment can only charge one crime. If a single count within an indictment charges more than one it is considered duplicitous and invalid. The only way it is valid is if the crime is considered continuous, occurring over a period of time. |
| Q. Did the trial court allow evidence of uncharged criminal acts? |
| A. The introduction of uncharged criminal acts, for the purpose of showing a defendant has a propensity to commit a type of crime, is prohibited in NY. |
| Q. Was your guilty plea knowing, voluntary and intelligent? |
| A. In order to invalidate a guilty plea it must be established the defendant did not enter the plea knowingly, voluntarily and intelligently. Meaning the trial court must establish that the defendant knowingly, voluntarily and intelligently waived some of, but not limited to, the following: the right to self incrimination; the right to jury trial; and the right to confront witnesses. The trial court must also elicit from the defendant that they actually committed every element of the crime in which they are pleading guilty and that they have had an opportunity to speak with their counsel regarding the terms and conditions to be imposed. |
| Q. Did the trial court improperly allow evidence of prior unrelated crimes? |
| A. A defendant is protected from self incrimination. Therefore, a defendant is entitled to a pretrial ruling to determine whether evidence of pending unrelated criminal charges is precluded from use by the prosecution for credibility purposes during cross-examining if the defendant takes the stand. |
2Some of the information was obtained from the Criminal Procedure Law 3People v. Gassett, 4 Misc. 3d 1015A (Sup. Ct., Bronx Co. 2004). |
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