New York Criminal Appeals

Filing a Notice of Appeal after Criminal Conviction in New York State

One of the very first and most important things to be done upon conviction and sentence for a crime in New York State is to file a notice of appeal. Deceptively simple, it is frequently done improperly, and if done improperly can result in the dismissal of an otherwise valid appeal.

In this article, New York Criminal Appellate Attorney Tom Theophilos discusses the requirements of filing a notice of appeal 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.

Notice of Appeal after Criminal Conviction in New York - Critical First Step

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

Filing a Notice of Appeal is a Job for a Lawyer

Anyone wishing to appeal a criminal conviction in New York should have a criminal lawyer file the notice of appeal. This article is meant to provide non attorneys a general idea of what is involved in filing a notice of appeal in New York. It is not meant to be an instruction manual. It would be a mistake for a non-lawyer to conclude that he can properly file a notice of appeal in a criminal case based on the contents of this, or any other website alone. There are issues related to the filing of a notice of appeal after a criminal conviction that are not covered by this article. Please review the terms of use of this site.

Filing a Notice of Appeal

In order to appeal a criminal conviction in New York, a notice of appeal must be filed. This is generally not a difficult thing to do. Generally, a notice of appeal is simply a statement that the person who was convicted intends to challenge his conviction. Filing a notice of appeal should not be confused with filing the legal arguments that will form the basis of the appeal. Despite the simplicity of the notice of appeal, a surprising number of attorneys fail to do it right. The consequences can be devastating.

The time limit for filing a notice of appeal is extremely short, and the failure to properly file a notice of appeal on time can result in dismissal of the appeal.

The attorney who represented the defendant at the trial court is responsible for filing a notice of appeal. If requested to do so by the client, the trial lawyer must file the notice of appeal.

There are four important aspects to the proper filing of a notice of appeal in most cases. They are:

Proper drafting of a notice of appeal in New York State

To be on the safe side a properly drafted notice of appeal should include all the following information:

Inclusion of anything less than these items risks having the appeal dismissed. Some of the Four Appellate Division appeals courts in New York offer a sample notice of appeal that meets each court's individual requirements. For example, the Appellate Division Second Department offers their version of a proper notice of appeal, among other forms.

Proper filing of the notice of appeal

Two copies of the notice of appeal must be filed with the clerk of the criminal court in which the sentence was imposed. Unfortunately, performing this task is not necessarily as easy as it sounds.

There are many different types of court clerks and lawyers have been known to file a notice of appeal with the wrong clerk, which can result in the appeal being dismissed. There are county clerks, court clerks for individual judges, clerks of the Appellate Division to which the appeal may be taken and finally the clerk of the criminal court.

Furthermore, in many counties the clerk of the criminal court may actually refer to himself or herself by some other name. For example, in Erie County, the clerk of the criminal court is called the Erie County Clerk. In Queens County, the clerk of the criminal court is referred to as the Supreme Court clerk.

In these counties, and many other counties you will search in vain for someone who calls himself the clerk of the criminal court. How then does one determine where to file a notice of appeal?

The criminal trial attorney who practices in a particular area should know who the appropriate clerk is.

Upon receipt of the notice of appeal, the clerk of the criminal court is required to forward that notice of appeal to the appropriate appellate court.

The term “filing” has a special meaning under the New York criminal law. It means that a document was in fact received by the intended recipient. A notice of appeal therefore is considered to be filed with the clerk when it is actually received by the clerk.

A notice of appeal should be filed with the clerk by physically going to the clerk’s office and handing three copies of the notice to the clerk or her designee. The clerk will keep two copies and the lawyer delivering it should get a stamped copy back from the clerk.

Because of the importance of filing the notice of appeal, it is important not only to present the copies of the notice to the clerk as required, but it is also important to come away with proof that you did what you were supposed to do.

Although rare, even documents as important as notices of appeal can be misplaced once they are properly presented to the clerk. Therefore, if there is a problem and the Government claims that the notice was not filed on time, it will be important to be able to prove that it was in fact timely filed.

Most clerks offices will have a stamping machine that will make stamps on the documents served and serve as proof that the document was presented on the date stamped, but there are additional precautions that can be taken. The person who serves the notice of appeal can swear out an affidavit of personal service indicating the date, place and description of the person to whom the notice was given. And sometimes clerks may provide a letter verifying that the notice of appeal was filed.

This may seem like overkill, but given the consequences to the appeal if the notice of appeal is lost and nobody can adequately show that it was ever properly filed, it makes sense to take these precautions.

Placing the notice of appeal in the mail does not constitute a filing. The fact that something is placed in the mail does not mean that it was received by the intended recipient. If the notice of appeal is mailed to the clerk, there is no proof that it was actually filed. Perhaps the clerk will record it as being filed upon receipt but there is no way of knowing that this will happen. Furthermore, the notice of appeal could get lost in the mail, it could arrive after the 30 day deadline has expired, it could be routed to the wrong clerk, or it could be received by the proper clerk but simply sit on the clerk’s desk for a couple of weeks and not be logged in until after the 30 day deadline has passed.

Many lawyers do mail the notice of appeal to the clerk and in many cases it does end up getting properly filed. However, this is a very risky and unwise way to proceed.

Non attorneys should always ask an attorney to file a notice of appeal. The client should both verbally tell his lawyer to file a notice of appeal and he should follow that request up in writing and keep a copy of the letter that he sent to his lawyer and indicate the date that he put the letter in the mail. The client should also make a hand written notation stating the date that he verbally told his lawyer to file a notice of appeal.

It is a big mistake for a person convicted of a crime to delay in telling his lawyer that he wants to appeal. If the trial lawyer is promptly told to file a notice of appeal and the lawyer either does not file a notice or does it wrong, an appeals court may grant permission to file a late notice of appeal.

When in doubt, always file a notice of appeal. You can always withdraw the notice later on and there is no downside to filing a notice of appeal. Certainly, a person who is convicted after trial should always file a notice of appeal, at least until a criminal appeals lawyer has a chance to evaluate the case.

If the defendant was originally charged only with a misdemeanor then it is possible that the court in which he was convicted and sentenced may not have a clerk of the criminal court. In that event the defendant must file one copy of the notice of appeal with the judge of the court where he was convicted and another copy of the notice of appeal with the appellate court that he plans on appealing his case to.

Service of the notice of appeal on the prosecutor

In addition to filing two copies of the notice of appeal with the proper clerk, you must also serve one copy of the notice of appeal on the prosecutor. Just like the term “filing” has a special meaning under the New York criminal law, the term "service" also has a special meaning.

Service of a document means it is simply placed in the mail with the proper postage and address appearing on the cover of the envelope enclosing the document. To comply with this rule therefore the notice must be placed in the mail to the prosecutor within 30 days of the defendant’s sentence. An affidavit of service by mail should certainly be filled out. Otherwise, there will be no proof that the document was mailed.

In addition to mailing a copy of the notice of appeal it is a good practice to also personally deliver a copy to the prosecutor’s office and get a stamped copy back from the prosecutor’s receptionist. This way there will be some proof that the notice was received by the prosecutor in the event that he later claims that he was never served with a copy.

As with the procedure involved in filing a notice of appeal, service of the notice should be done by the lawyer. Unfortunately, many lawyers serve the notice of appeal on the prosecutor and never make out an affidavit of service.

Complying with the 30 day deadline

The deadline for filing and serving the notice of appeal is 30 days from the date of sentence. It is unwise to wait until the last minute to file and serve the notice of appeal. There is little reason why the notice of appeal could not be served within one week of the date of sentence. Upon conviction there is often a substantial time period while the judge considers sentencing. Therefore, it should not be considered a mystery that a notice of appeal will need to be filed. By filing within a week of sentencing, if any mistakes are made there is yet time to re-file. The trial lawyer should be told to serve and file a notice well before the 30 day deadline.

Filing a late notice of appeal

If the notice of appeal is not filed within the 30 day deadline and if that failure was due to an error committed by the defendant’s lawyer or by a public servant, then the defendant may be able to file a late notice of appeal. Any request for such permission must be made in writing by way of a formal motion to the appropriate appellate court. Such a motion must be made within one year and 30 days of the date of the defendant’s sentence. A request should also be made to serve a late notice of appeal on the prosecutor if that was not properly done.

Filing a notice of appeal for a federal conviction

For a person convicted in federal court, filing a notice of appeal is very easy compared to what is required by New York State. There are only four federal district courts in New York state. They are all very large buildings and easy to find. All that is required is that a person go to the clerk of the court and file the notice of appeal. Furthermore, the clerks provide a blank notice of appeal to the person who appears. All that is required is to fill in the blanks, return it to the clerk and accept the receipt provided by the clerk.

However, be aware that the time limit for filing a notice of appeal in federal cases is only 15 days from the date of sentence. There may be ways to extend that period of time, but it is a better idea to avoid the issue. The best practice is simply to file it as soon as possible after sentencing.