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Appellate Attorneys Explain the Basics for Pursuing an Appeal

The Law Office of Matthew Galluzzo, PLLC Team

A conviction for a crime doesn’t have to be the end of your case. A talented and experienced appellate lawyer may be able to find a way to get your conviction overturned or your sentence reduced. Most criminal defense attorneys do not handle appeals or have very little experience doing it. Thus, you should strongly consider hiring a specialist to pursue your appeal if you have the resources to do it. Also, there are deadlines for pursuing the most common types of appeals, so you absolutely must act quickly to get the process started if you are considering pursuing one.

Criminal defendants that have been convicted in New York have the right to one “direct appeal,” or an appeal to a higher court. In the New York state system, the four Appellate Divisions review convictions from Supreme Court (the trial court that primarily handles felonies). The Appellate Division, First Department is responsible for Manhattan and the Bronx, the Second Department deals with cases from Brooklyn, Queens, Staten Island, Westchester and Long Island, the Third Department is based in Albany, and the Fourth Department is in Rochester.

From there, cases can be further appealed to the state’s highest court, the Court of Appeals (based in Albany). A defendant is not entitled to have his case heard by that court; typically, an appellant must persuade the court that his case involves issues of statewide import. If the Court of Appeals agrees to consider the arguments, then it grants certiorari (sometimes referred to as “leave to appeal” or “cert”) and the appellant’s attorney can file a brief arguing for a reversal of the conviction or modification of the sentence.

In order to pursue the original “direct appeal,” the defendant must first file a “notice of appeal” with the correct Appellate Division immediately. Aside from finding an attorney to handle the matter, the defendant seeking to appeal his conviction also needs to obtain the transcripts of his court appearances as soon as possible. Typically, the defendant or his attorney must contact the specific court reporters directly to order the transcript, and arrange for payment to the court reporter. Indigent defendants can apply to the Appellate Divisions for “poor person relief” if they need to have the minutes provided free of charge. (Note: indigent defendants that have been represented by the Legal Aid Society, some other public defense agency, or an 18b attorney, can also apply for free appellate representation).

In the federal system, a conviction in New York federal district court (such as the Southern District of New York or the Eastern District of New York) is appealed to the Second Circuit Court of Appeals. A conviction in the District of New Jersey is appealed to the Third Circuit Court of Appeals.

Generally speaking, typical direct appeals have to involve errors or appealable issues that can be gleaned from the transcript, or “minutes” of the court proceedings. These sorts of appeals usually stem from mistakes that happened during a trial. Some common areas of appeal include pre-trial suppression hearings, jury selection, the sufficiency of the evidence, the weight of the evidence, and Molineux and Sandoval.

In cases involving the possession of contraband (such as narcotics or firearms), there is usually a pre-trial suppression hearing before a judge. These “Mapp hearings” (or Mapp/Dunaway) usually involve police officers testifying as to their basis for the search that led to the recovery of the contraband. If the judge is convinced that the officers had sufficient or probable cause to act as they did in searching the defendant’s property or person, then the contraband can be used by the prosecutor at trial. If, on the other hand, the judge finds that the police officers violated the constitutional rights of the defendant, then he orders “suppression,” meaning that the contraband may not be used at trial. Most of the time, suppression requires the prosecutor to dismiss the case. Obviously, then, these suppression hearings can be enormously important. The decisions of judges in suppression hearings can be appealed to the Appellate Division, even sometimes in cases where the defendant decides to plead guilty after losing the hearing. Furthermore, statements by defendants can be suppressed where they were involuntarily made or made in violation of Miranda warnings (the subject of a Huntley hearing). Finally, identifications of suspects can also be suppressed where the procedures used for showing the suspect to the eyewitness were performed improperly (the subject of a Wade hearing).

The jury selection process can sometimes be appealed as well. For example, if the appellate attorney can demonstrate that the judge wrongfully failed to exclude a potential juror that couldn’t be fair (or failed to assure the court that she could be fair), then the subsequent conviction might be reversible. Also, a conviction may be reversible where the prosecutor systematically excluded jurors for some discriminatory reason (the age, gender, or race, for example). This is sometimes referred to as a “Batson violation”.

Furthermore, an appellate lawyer can challenge the conclusions to be drawn from the proof as well. Typically, one can either challenge the sufficiency of the evidence or its weight. When arguing sufficiency, an appellate lawyer assumes that all of the prosecution’s evidence was true and credible, but that the evidence nevertheless failed to prove a specific and necessary element of the crime. Appellate lawyers can also argue about the “weight of the evidence” at trial, meaning that the prosecution’s evidence simply wasn’t strong enough to warrant a conviction. The distinction between “sufficiency” and “weight” is subtle but nevertheless very significant, as they involve different standards of review by the appellate courts.

Some other types of appeals can also be made to the court in which the conviction occurred. The most common of these is brought pursuant to CPL Section 440.10. These motions can be made at virtually any time but are best done as soon as possible. A 440.10 motion can involve legal issues that are not apparent from the court transcript, meaning that they occurred “off the record”. For example, newly discovered evidence or improperly withheld evidence (such as exculpatory “Brady material”) can form the basis of a successful 440.10 motion. Many appellants choose to argue that their trial attorneys represented them poorly, or provided “ineffective assistance of counsel” (note: these arguments can sometimes be made on direct appeal as well). Along similar lines, many non-citizens have successfully argued that they were deprived of their constitutional right to effective assistance of counsel, or that they made uninformed decisions about their cases, because they were not properly advised of the immigration consequences of their criminal cases. These arguments are sometimes referred to as “Padilla appeals,” referring to the Supreme Court decision from which these cases spawned. (The attorneys at The Law Office of Matthew Galluzzo have handled cases such as these). Defendants can also pursue similar motions to set aside the verdict after a trial conviction but before their sentence pursuant to CPL Section 330.30 (the main difference between 440.10 and 330.30 being the timing). Finally, a court can reduce or modify a sentence pursuant to a motion brought under CPL Section 440.20. Decisions on these sorts of motions can also generally be appealed to the Appellate Division.

Finally, after one’s state appellate options have been fully “exhausted,” meaning that every direct appeal has been decided, an incarcerated person can possibly look to state courts writs of habeas corpus (and possibly even federal courts) for release from prison. The writ of habeas corpus is a civil motion brought to challenge the legality of the detention of the prisoner. Basically, the prisoner argues that his constitutional rights are being violated by virtue of his unlawful detention (i.e. the conviction or sentence was improper or unlawful), and the remedy is release from custody.

If you or a loved one have been convicted of a crime and are considering an appeal, you should strongly consider contacting the intelligent and experienced criminal appeals lawyers at the Law Office of Matthew Galluzzo. Their team of former prosecutors includes a pair of experienced lawyers – Matthew Galluzzo and Zack Johnson – that routinely handle trial-level matters yet began their careers specializing in criminal appeals. Zack Johnson has successfully argued a criminal appeal before the highest court in the state of New York (the Court of Appeals) and Matthew Galluzzo is currently working on an appeal to that court involving a cutting-edge legal issue. (See Unlike most criminal lawyers, they are skilled at handling cases at both the trial level and on appeal; indeed, they firmly believe that being appellate lawyers makes them better trial lawyers, and vice versa. They also stay abreast of new developments in state and federal law, as evidenced by their sophisticated blog on criminal law topics. As a result of their exceptional backgrounds, they are uncommonly good at identifying potential grounds for appeal, and they work tirelessly to ensure that their finished products are persuasive. Contact them today to set up a free initial consultation to discuss your case.

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