New York Criminal Appeals

Challenging a Criminal Conviction in New York

Once the terrible reality of conviction has set in, attention shifts to the possibilities for undoing what has been done. Although most people are aware of the right to appeal a conviction, there are many different types of appeals available. It is important to understand the different post conviction options permitted by law and to review those options with a criminal appeals lawyer as soon as possible.

In this article, New York criminal appeals lawyer Tom Theophilos discusses the various ways in which convictions in New York state and federal criminal courts can be challenged.

In addition, two related articles may also be of interest to help explain the New York appeal process. In one article, Mr. Theophilos discusses how the appellate courts are organized and the path that an appeal takes through the courts. In another, Mr Theophilos discusses the problems and procedures associated with filing a notice of appeal after conviction in New York State.

If you have any questions or would like to speak with New York Criminal Appeals Attorney Tom Theophilos about a New York State Criminal Appeal or a Federal Criminal Appeal, please call 866-447-7899.

After Conviction in New York - What are Your Options?

by: Tom Theophilos, Esq., New York State Criminal Appeals Attorney

New York Post Conviction Options - Varieties of Hope.

Whenever there are trials, there is a chance for conviction, no matter the quality of the case. Unfortunately, the truth does not always win out in the end at a criminal trial. Therefore, there will be times when a person accused of a crime he did not commit will listen in horror as the jury declares him guilty.

Although the situation is certainly grim, and although the convicted person may be forced to begin serving a jail sentence, there is yet still hope.

There are a variety of options available to someone who has been convicted of a crime in one of New York's criminal trial courts.

Direct Appeal of a Criminal Conviction in New York

The post conviction option that most people are familiar with is the appeal taken directly after a trial or guilty plea.

This kind of appeal is referred to as a direct appeal. In order to take a direct appeal, the convicted person's attorney must properly draft, file with the appropriate clerk, and serve on the prosecutor a notice of appeal. The notice of appeal must be properly processed. If it is not the defendant may lose his right to appeal his case. Direct appeals are available in both the state and federal system.

In a direct appeal, a defendant is only allowed to argue issues that are on the record. An issue is on the record if it was introduced into evidence or argued in the trial court. For example, if a trial lawyer objected to the introduction of certain evidence by the prosecutor during the course of the trial and the judge overruled the objection this would be an issue that is on the record.

I discuss the direct appeal process in New York in my article about the New York Criminal Appeals Process.

The 440 Motion - Problems not "on the record"

Sometimes reasons could exist to complain about a conviction that were not part of the record at trial. For example, suppose the defense attorney learns that the prosecutor withheld evidence beneficial to the defense. If the defense didn't know about it, and the prosecutor didn't tell anyone about it, there is not likely to be any record of the withheld evidence.

This would then be something that is not on the record.

If a defendant is convicted in a New York state court and wants to seek reversal of a conviction based on evidence that is not on the record he must file a motion according to the rules of New York Criminal Procedure Law Section 440.

This is more simply referred to as a 440 Motion.

If that motion is denied by the trial judge then the defendant can ask for permission to appeal that denial to an appellate court.

A 440 motion is called a collateral proceeding. An appeal from a denial of a 440 motion is not a direct appeal.

The Federal Writ of Habeas Corpus

In the federal criminal system if a defendant wants to seek reversal of a conviction based on evidence that is not on the record he or she can file a petition for a writ of habeas corpus. Such a petition is filed in federal district court. If the habeas petition is denied by the district court then the defendant can ask for permission to appeal to the Circuit Court.

Direct Appeal "Do Over" - Writ of Error Coram Nobis

If a direct appeal is lost in a New York court you do not generally get a second chance to re-file that appeal. There is, however, an exception to this rule. If some new evidence or argument comes to light that was not present in the first appeal and if there is some compelling explanation for not making the argument in the first appeal, then the appellate court may give a defendant the right to re-file the appeal.

To do this, however, the defendant must first file with the appellate court what is referred to as a petition for a writ of error coram nobis. In this petition the defendant’s lawyer must give a reason why he should be allowed to file a new brief. If the petition is granted, then the defendant can proceed all over again with the filing of a direct appeal.

It is very difficult to convince an appellate court to hear the same appeal twice. Because of this, error coram nobis petitions are rarely granted.

In my own experience as a New York Criminal Appeals lawyer, I have actually filed and won an Error Coram Nobis Petition on a murder case in New York. Click on the link to read a summary of the case. Of course the outcome of a prior case cannot predict the outcome of any future case. I offer the information simply as evidence that, however rarely, Coram Nobis petitions are granted from time to time.

In other words, there is hope.

I hope you now have a greater understanding of the variety of possible ways to challenge a conviction in New York State and Federal criminal court. It is important to review these possibilities with a New York criminal appeals lawyer in order to know how to handle your particular case.

Feel free to contact me to review your situation.

I handle direct appeals to all New York State and Federal Appeals courts, including:

I also handle:

If you have any questions about the appeals of criminal convictions in New York State, please do not hesitate to call me at 866-447-7899.