The criminal appeal process in the state of New York begins at the conclusion of a trial if a defendant is convicted. After a conviction in New York, a defendant usually may make one retrial to a higher court. If this first appeal fails, a defendant may ask the New York Court of Appeals to review the case. The Court of Appeals chooses the cases it reviews and is not obligated to review any particular case. Below are some the most frequently asked questions about criminal appeals in New York and the answers to those questions:

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Q: How are criminal appeals managed in the state of New York?

A: New York divides the work of handling criminal appeals among a number of various courts. Understanding these courts and the appeals process in New York can be quite confusing, so while this is a general introduction to the criminal appeals process, questions regarding specific cases should be directed to an experienced Westchester County criminal defense attorney. Initial criminal trials in New York are heard by different courts. The lower level courts that hear and try misdemeanor cases only are called by a variety of names.

In New York City, for example, misdemeanor level trial courts are called “criminal courts.” It gets even more confusing. The lowest level courts that try felony cases in New York are called County Courts or “Supreme” Courts. For example, a felony trial in Bronx County will be held in the “Bronx Supreme Court.” All of these courts are where original criminal trials or guilty pleas take place. After a trial or a guilty plea, a convicted offender can retrial the conviction or plea to a higher court.

Q: What courts hear felony appeals in New York?

A: All felony appeals in New York are handled by Appellate Division courts. The Appellate Division is divided into four districts or “departments.” Each department of the Appellate Division has jurisdiction over specific counties within the state. For example, if you appeal a felony conviction from Nassau County, your retrial will be heard by the Second Judicial Department, located in Brooklyn. Both the Appellate Division and certain county courts hear misdemeanor appeals.

The highest criminal appeals court in the state of New York is the New York Court of Appeals. No higher court, not even the U.S. Supreme Court, can overturn its interpretation of New York law. Every defendant convicted in a trial court in this state has an automatic right to appeal. If an appeal is rejected in the Appellate Division or a County Court, a convicted offender can ask the New York Court of Appeals for one last chance to retrial the conviction.

Q: What if the Court of Appeals rejects an appeal request?

A: The New York Court of Appeals rejects most requests for permission to appeal. For most convicted offenders, then, the first appeal to an Appellate Division court is their one and only chance. If the New York Court of Appeals refuses to hear your appeal or hears your retrial but rejects it, you can request permission to appeal to the U.S. Supreme Court. The U.S. Supreme Court, however, will hear an appeal from a state court only if there is a claim that the defendant’s federal constitutional rights were violated. Such appeals are rarely granted.

Q: What is a notice of appeal?

A: To begin the appeal of a felony conviction in New York, a criminal defense attorney should file the initial notice of appeal. A notice of appeal is merely a declaration that the convicted offender plans to contest his or her conviction. Filing a notice of appeal should not be confused with filing the legal arguments that will form the basis of the appeal. The time limit for filing a notice of appeal is limited, and failure to file a notice of appeal on time can result in the appeal’s dismissal.

Q: Who files the notice of appeal?

A: If asked to do so by his or her client, the attorney who represented the convicted offender at trial is obligated to file the notice of appeal. The client should verbally ask the lawyer to file a notice of appeal and follow up that request in writing. Keep a copy of the letter asking the lawyer to file a notice of appeal, and indicate the date that the letter was mailed. The client should also write a note indicating when the attorney was asked verbally to file a notice of appeal.

Two copies of the notice of appeal must be filed with the clerk of the criminal court where the sentence was handed down. Upon receiving the notice of appeal, the clerk of the criminal court is then obligated to forward the notice to the appropriate appellate court. In New York criminal law, the term “filed” means that a document was in fact received. Simply submitting a document or placing it in the mail does not mean it is necessarily “filed.”

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A Westchester County criminal defense attorney, for example, will go physically to the clerk’s office and hand three copies of the notice to the clerk or the clerk’s designee. The clerk keeps two copies, and the attorney should get a stamped copy back. That stamped copy is proof that the notice of appeal has been filed, and it’s also insurance in case the two copies received by the clerk are lost.

Q: Is there any reason not to appeal a criminal conviction in New York?

A: Everyone convicted of a crime in New York should at least file a notice of appeal. There’s no downside to filing, and the notice can always be withdrawn. If the conviction was for a misdemeanor rather than for a felony, then it is possible that the court where the sentence was handed down may not have a clerk of the criminal court. If not, a defendant must file one copy of the notice of appeal with the judge of the court and another copy of the notice of appeal with the appropriate appellate court. A defense attorney should handle these filings on a defendant’s behalf.

Q: How should a prosecutor receive a notice of appeal?

A: Along with filing two copies of the notice of appeal with the appropriate clerk, you must also serve one copy on the prosecutor. Just like the term “filing,” the term “service” also has a special meaning under New York criminal law. “Service” of a document simply means that it is placed in the mail with the proper postage and address. A notice of appeal should thus be sent by certified mail so that there’s proof the document was mailed.

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Q: What about appealing federal convictions?

A: Federal convictions are actually easier to appeal than New York state-level convictions. All that is required is to appear in the federal court, ask the clerk for a blank notice of appeal form, fill in the blanks, return it to the clerk, and accept the receipt back from the clerk. The time limit for filing a notice of appeal in federal cases is only fifteen days from the date of sentencing, so you cannot delay if you are appealing a federal conviction. You’ll need to have your attorney take immediate action.

By: Kimberly Pelesz

Family law and criminal defense attorney Kimberly A. Pelesz received a B.S. degree magna cum laude and an M.P.A. degree summa cum laude from Binghamton University. She earned her J.D. from Pace University School of Law in White Plains, where she was selected for Phi Alpha Delta. Her charitable activities include work with My Sisters’ Place in White Plains and the Westchester County District Attorney’s Humane Education Taskforce.

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