- Working on Criminal Appeals
- Against the Odds
- Choosing the Right Appeals Lawyer
- Appeals Courts in Which Mr. Theophilos Regularly Appears
- Murder Conviction Reversals
- Federal Sentencing Reversals
- Assault Conviction Reversal
Tom Theophilos has been a practicing attorney for over 20 years. In law school he received awards for his ability to argue an appeal, draft an appellate brief and conduct a trial.
After law school, Mr. Theophilos practiced as a criminal trial attorney for several years in New York City. He tried numerous felony jury trials and conducted numerous pre-trial suppression hearings. In the criminal trial courtrooms of New York City, Mr. Theophilos gained an insight into criminal trial practice that continues to help him analyze trial transcripts to this day.
A Law Practice Concentrated on Criminal Appeals and Post Conviction Litigation in New York
For many years now Mr. Theophilos has maintained his own private law practice which is concentrated in the area of criminal appellate and postconviction litigation in both New York State and federal courts. Mr Theophilos handles:
- direct appeals
- CPL 440 motions
- federal habeas corpus petitions
- other post-conviction remedies, such as coram nobis petitions
Over the years, Mr. Theophilos has developed and maintained associations with prominent criminal trial attorneys throughout New York who refer their appellate litigation to him.
The preparation of a direct appeal or any other type of post-conviction litigation involves a significant amount of work. Transcripts have to be meticulously reviewed to determine if any issues present themselves for appeal.
Once issues are spotted many hours of legal research have to be done to determine what case law exists that would support the defendant's arguments. A brief then has to be drafted which persuasively argues to the court that the case law coupled with the facts of the defendant's case require that the conviction be reversed.
Once the brief is submitted then the court schedules the case for oral arguments. At oral arguments the attorney can be peppered with numerous questions and especially in the New York Court of Appeals questioning will be extremely intense and the judges will be very well-prepared.
Mr. Theophilos puts a great deal of work into the appeals that he handles. When he takes a case he studies the facts and the law for days on end until he develops an argument that he believes has the best chance of winning the case. He has often spent hundreds of hours on a single case. He works the case tirelessly until he is convinced that he has produced an excellent work product.
It is this single-minded attention to detail and relentless work in support of his clients that has resulted in the numerous reversals that he has received.
The harsh reality is that the vast majority of criminal appeals are lost. It is much more difficult to win a case on appeal than it is to be successful in the trial court.
At the trial court the defendant has the presumption of innocence. Once the defendant has lost the trial, that presumption is gone. This makes it much more difficult to prevail on appeal.
The fact that winning an appeal is always an uphill battle does not mean that you should give up hope. Mr. Theophilos' own experience is evidence that appeals can be won on difficult cases.
Many people will consider hiring a well-known trial attorney to handle an appeal. The belief is that because the lawyer won a number of trials that he might be the best person to handle the appeal.
Unfortunately, the reality is somewhat different because the job of the trial lawyer is very different from the job of the appeals lawyer. Each job requires a different set of skills. Having the skills to be a great trial lawyer does not mean that a person has the skills to be a great appeals lawyer.
To properly draft an appellate brief the lawyer must set aside large chunks of time to conduct research and actually draft the brief. That means sitting in an office for hours at a time, day after day, until the brief is done. Trial lawyers necessarily have to go to court every day. If they are successful trial lawyers then they go to court even more often than other trial lawyers. The likelihood is that they are hardly ever in their office. This of course brings into question when they would have enough time to write the brief.
Additionally, knowledge of the law is obviously critical in winning an appeal. People who concentrate their practice in appellate litigation spend most of their time studying the law.
Trial attorneys do not spend most of their time studying the law. Trial attorneys spend most of their time going to court, conferencing cases with judges, speaking with dozens of clients, tracking down witnesses, preparing cross examinations and many other things completely unrelated to the study of law.
Before retaining appellate counsel, you would be best advised to make sure that the person you hire has the type of practice, skills, and experience that enables him to do the job properly.
Mr. Theophilos represents people from all over New York State. Specifically, he has represented people with cases originating from the following areas:
The majority of work on an appeal involves research and writing in the office to prepare a legal brief and preparation for a single appearance before the appeals court for oral arguments. Therefore, Mr. Theophilos takes cases from all around New York State and simply travels to the various appellate courts as needed for oral arguments.
In the course of his criminal appeals practice, Mr. Theophilos has handled appeals before the following courts in New York:
- Appellate Division, First Department in Manhattan
- Appellate Division, Second Department in Brooklyn
- Appellate Divison, Third Department in Albany
- Appellate Divison, Fourth Department in Rochester
- The New York Court of Appeals in Albany
- United States Second Circuit Court of Appeals (New York Federal) in Manhattan
Mr. Theophilos has handled a wide variety of appeals and post conviction motions. He has handled numerous appeals for murder cases and major drug cases in both New York State and Federal Courts.
Please remember that the outcome of any case cannot predict the outcome of a future case. The following are cases in which Mr. Theophilos was successful for his clients, but all appeal cases are influenced by their own set of facts and the record made at trial.
Mr. Theophilos drafted the brief and appeared for oral arguments before the U.S. Court of Appeals in the case of U.S. v. Klyde Glenn (312 F. 3d 58).
The defendant in that case had been convicted after trial of committing murder in furtherance of a drug conspiracy and was sentenced to life in prison. Mr. Theophilos persuaded the United States Court of Appeals, Second Circuit, that there was insufficient evidence to establish that his client had committed homicide. As a result, the conviction was reversed and the defendant’s life sentence was vacated.
Reversals on the grounds of insufficient evidence are extremely rare for any category of criminal case and are even more unusual for murder cases.
Mr. Theophilos prevailed on a petition for a writ of error coram nobis in a New York state murder case (People v. Leon Martin, 17 A.D. 3d 1172). A favorable ruling on a writ of error coram nobis permits a defendant to re-file an appeal. It is extremely rare for such writs to be granted in any category of criminal case, and even more unusual for them to be granted in favor of defendants convicted of murder.
After the writ was granted, Mr. Theophilos submitted a brief to and argued his case before the appellate division. That court then reversed the murder conviction. People v. Martin, 26 A.D. 3d 847.
The prosecutor appealed that decision to the New York State Court of Appeals, New York's highest court. Mr. Theophilos won the case in the New York Court of Appeals. See, People v. Martin, 8 N.Y. 3d 129.
In the case of People v. Buchanan, 13 N.Y. 3d 1, the defendant was convicted of the murder of a 14-year-old girl. The case was appealed to the Appellate Division which affirmed the conviction.
Mr. Theophilos then stepped in as newly retained counsel and appealed the case further to the New York Court of Appeals.
Mr. Theophilos drafted the brief and argued the case before New York’s highest court. He argued that the trial judge violated the law by requiring the defendant to wear an electric stun belt during the course of the trial.
Mr. Theophilos argued that requiring anyone to wear such a belt may cause psychological stress that interferes with a defendant’s ability to concentrate on his trial and assist in his own defense. After a vigorous oral argument and intense questioning from the bench, Mr. Theophilos convinced the court that requiring the defendant to wear the belt violated his constitutional rights to a fair trial and due process of law.
The court then reversed the conviction.
U.S. v. Jimmy Glen
Mr. Theophilos handled the appeal of a defendant who pled guilty to selling cocaine and received a sentence of life in prison without the possibility of parole. The defendant in that case did not challenge the fact that he committed the offense but simply wanted the life sentence eliminated. Mr. Theophilos took the case and appealed it to the United States Second Circuit Court of Appeals and was successful in getting the sentence of life in prison reversed (U.S. v. Jimmy Glen, 418 F. 3d 181).
Mr. Theophilos also won reversals in three other federal sentencing cases.
- U.S. v. Rodriguez, 260 Fed. Appx. 414
- U.S. v. Kaid, 241 Fed. Appx. 747
- U.S. v. Berrios, 279 Fed. Appx. 82
Mr. Theophilos obtained a reversal of a conviction for Assault in the First Degree in the case of People v. Albanna, 23 A.D. 3d 1004. In this case, Mr. Theophilos argued that the trial judge made a mistake in the instructions that were given to the jury at the end of the trial. The Appellate Division agreed and reversed the defendant’s assault conviction.
Wide Variety of Appeals and Creative Arguments
Mr. Theophilos received a reversal of a felony drug sale in the case of People v. Ciccarelli, 32 A.D. 3d 1175.
In the case of People v. Hibbard, 27 A.D. 3d 1196, Mr. Theophilos won a reversal of the defendant’s sentence on the ground that the trial judge had violated his client’s First Amendment rights to freedom of speech.
In People v. Charles, 67 A.D. 3d 698, Mr. Theophilos argued that the trial judge misinterpreted the law when sentencing the defendant. The appellate court agreed and reversed the defendant’s sentence.