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 with 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 filing a notice of appeal after a criminal conviction that are not covered by this article. Please review the terms of use of this site. This article deals with taking a direct appeal of a judgement of conviction to an intermediate appellate court after conviction of a felony in a New York trial level court. It does not address many of the rules applicable to appealing the denial of a C.P.L. 440 motion or taking an appeal from an intermediate appellate court to the New York Court of Appeals. This article does not deal with appealing the conviction for one who has only been convicted of a misdemeanor or a violation.
Filing a Notice of Appeal
In order to appeal a judgment of conviction in New York, a properly drafted notice of appeal must be timely filed and served. A notice of appeal is simply a written statement indicating that the person who was convicted intends to appeal his conviction. Filing a notice of appeal should not be confused with filing the legal arguments that will form the basis of the appeal. The legal arguments in support of an appeal are included in a brief that is many pages long. The notice of appeal, however, is usually just a single piece of paper indicating an intent to appeal. Although one would expect that a criminal attorney would know how to draft and file a notice of appeal, a surprising number of attorneys fail to do the job properly. The consequences to the defendant can be devastating.
A notice of appeal must be properly drafted, filed and served within 30 days after imposition of the sentence. The failure to comply with this deadline may result in dismissal of the appeal. The certificate of conviction will indicate the date of sentence. Such a certificate can be procured from the clerk of the court for a small fee.
The attorney who represented the defendant at trial or at the plea proceeding is responsible for filing the notice of appeal. If the defendant retains alternate counsel for purposes of sentencing, then the attorney who represented the defendant at sentencing becomes responsible for filing the notice of appeal. If requested to do so by the client, then the attorney who represented the defendant at sentencing must file the notice of appeal.
The defendant should always ask his lawyer to file the notice of appeal and the defendant should do so on the date that he is sentenced. Furthermore, as indicated below, the defendant should make the request to his lawyer both verbally and in writing. If the defendant does not tell his lawyer to file a notice of appeal then he may be precluded from appealing his conviction. Even if the defendant is not sure that he wants to appeal, or even if the defendant has no desire to appeal, he should still tell his lawyer to file a notice of appeal. The defendant can always withdraw the notice of appeal later on, so 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.
The attorney may not condition his willingness to file the notice of appeal on the payment to him of any money. The rules of each department of the Appellate Division require the attorney to properly file and serve the notice of appeal if the defendant requests him to do so. However, depending on the circumstances, some of those rules may require that the defendant make the request to the attorney in writing. See, Court Rule 606.5 (First Department); Court Rule 671.3 (Second Department); Court Rule 821.1 and 821.2 (Third Department); Court Rule 1015.7 (Fourth Department). Furthermore, if the defendant simply makes a verbal request to his attorney that he file a notice of appeal, the lawyer can always deny that the defendant made the request. But if the defendant puts the request in writing and mails it to his lawyer, then it becomes much more difficult for the lawyer to deny that the defendant asked him to file the notice of appeal. Accordingly, whether required by court rules or not, it is always best to send a letter to the lawyer requesting that he file the notice of appeal. The address of all New York attorneys can be found on the New York State Office of Court Administration website.
Even if a lawyer tells his client that he will file a notice of appeal, the defendant should still go ahead and send the lawyer a letter requesting that the lawyer file the notice of appeal. The possibility exists that the lawyer may simply forget to file the notice of appeal or he may file it incorrectly. If that occurs then in order to protect himself from a claim of ineffective assistance of counsel, the lawyer may later claim that the defendant never requested that the lawyer file a notice of appeal and that the lawyer never indicated that he would do so. Should the lawyer make such a claim, it will be very helpful if the defendant has written documentation backing up his claim that he asked his attorney to file and serve a notice of appeal. This documentation can then be used in support of a motion requesting permission to file a late notice of appeal (See subsequent section of this article titled “filing a late notice of appeal” which discusses this motion).
The defendant’s request that a notice of appeal be filed must be received by the lawyer sufficiently in advance of the deadline for the filing of the notice so as to give the lawyer sufficient time to properly draft and then file and serve the notice of appeal. So, for example, if the lawyer receives the request to file a notice of appeal two days before the deadline for filing is set to expire, the lawyer can always claim that the defendant did not give him enough advance notice of the defendant’s desire to have the lawyer file the notice of appeal.
The best practice would be for the defendant to tell his lawyer verbally on the date of sentence that he wants him to file the notice of appeal and then put a letter to that effect in the mail to his lawyer the very same day that the defendant is sentenced. The defendant should also make a note of the date and place where the defendant told the lawyer to file the notice of appeal and keep that note for his files. The defendant should also fill out an affidavit of service indicating the date on which he mailed his written request to his lawyer and he should obviously keep that affidavit and a copy of the letter for his files. The affidavit of service should, at the very least, state the address to which the letter was mailed, the date that it was mailed and that first class postage was affixed to the envelope containing the letter. If the defendant does not know how to draft an affidavit of service, then he should write all of the above information on a piece of paper and indicate on that paper the date that he made all these written notations. He should then keep this paper for his records.
As a further backup measure, the defendant can take actions indicated in a subsequent portion of this article titled “what to do if the lawyer refuses to file a notice of appeal.”
Any letter that the defendant sends to his sentencing/trial attorney could include the following statement: “Please be advised that I request that you take all steps necessary to preserve my right to appeal including filing and serving a notice of appeal.”
There are four important aspects to the proper filing of a notice of appeal in most cases. They are:
The notice must be properly drafted.
Two copies of the notice of appeal must be filed with the clerk of the criminal court in which the sentence was imposed.
One copy of the notice of appeal must be served on the prosecutor.
The notice of appeal must be filed with the proper clerk and served on the prosecutor within 30 days of the sentence date.
Proper drafting of the notice of appeal in New York State
To be on the safe side, a properly drafted notice of appeal should include all of the following information:
The name of the defendant and the docket number or indictment number of the case that he is appealing.
The court from which the appeal is being taken.That the appeal is from both the judgment and sentence and every intermediate order made therein.
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 on their websites. For example, the Appellate Division, Second Department offers its version of how a notice of appeal could be drafted.
Notice, however, that the Second Department’s sample notice of appeal indicates that an index number as opposed to the indictment number should be placed on the notice of appeal. Index numbers may be appropriate for notices of appeal filed in civil cases or misdemeanor cases but in the case of an appeal from a conviction for a felony, the indictment number must be included on the notice of appeal. And there are other shortcomings associated with that sample notice of appeal. So even though the Appellate Division form can be a helpful guide when drafting a notice of appeal, it still must be altered depending on the nature and type of case being appealed. This is an example of why it is important to have a lawyer draft the notice of appeal. If a layman were to draft the notice of appeal on his own based on the template included in the Second Department website, he may not make the appropriate adjustments and the notice of appeal could end up being defective.
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.
The term “filing” has a special meaning under New York criminal law. It means that a document was in fact received by the intended recipient. The notice of appeal, therefore, is considered to be filed with the clerk only 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, one must not only present copies of the notice to the clerk as required, but he must also come away with proof that the notice was filed. Procuring a stamped copy of the notice of appeal from the clerk constitutes some proof that it was filed. Additionally, the person who delivers the notice of appeal should swear out an affidavit of personal service indicating the date and place of service and a description of the person to whom the notice was given. That affidavit of service should also state that two copies of the notice of appeal were filed with clerk. And sometimes clerks may provide a letter verifying that the notice of appeal was filed.
Although rare, even documents as important as notices of appeal can be misplaced once they are properly presented to the clerk. If this happens then the clerk will deny that she ever received the notice of appeal. In that event, it will be important to be able to prove that the notice was in fact given to the clerk.
This may seem like overkill, but given the consequences to the appeal if the clerk loses the notice of appeal, it makes sense to take these precautions.
Placing the notice of appeal in the mail does not constitute a filing.
As stated previously, the notice of appeal is not considered to be filed until it is actually received by the clerk. The fact that something is placed in the mail does not mean that it was received by the intended recipient. Proof that the notice of appeal was mailed to the clerk does not constitute 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 get 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. The lawyer must go down to the clerk’s office and personally hand two copies of the notice of appeal to the appropriate clerk and get a stamped copy back for himself.
Service of the notice of appeal on the prosecutor
In addition to filing two copies of the notice of appeal with the proper clerk, the defendant 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 that 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 of appeal 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 and retained by the lawyer 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 idea 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 but never make out an affidavit of service.
Usually it is the district attorney who prosecutes a defendant. But sometimes a special prosecutor can be appointed or the Attorney General can assume responsibility for prosecuting a case. Logic would dictate that the notice of appeal should be served on whoever actually prosecuted the case. So, for example, one might logically conclude that if the Attorney General prosecuted the case then the notice of appeal should be served on the Attorney General, not the district attorney. However, CPL 460.10 (1)(b) states that the defendant must “serve a copy of [the] notice of appeal upon the district attorney of the county embracing the criminal court in which the judgment…being appealed was entered.” The exact words of the statute, therefore, require service of the notice of appeal on the district attorney even if the district attorney did not prosecute the case. The practice commentaries which accompany the statute, however, indicate that the notice of appeal should be served on “opposing counsel.” If opposing counsel is not the district attorney, then, according to the practice commentaries, service of the notice of appeal need not be made on the district attorney. The only way to properly resolve this issue is to simply play it safe and serve a copy of the notice of appeal on the district attorney even if the district attorney had no responsibility for prosecuting the case. In that event, the notice of appeal must also be served on the prosecutor who actually did prosecute the case. In short, therefore, the defendant would serve a notice of appeal on both prosecutors.
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 filed and served within one week of the date of sentence. By filing within a week of sentencing, if any mistakes are made there is yet time to refile. The lawyer who represented the defendant at sentencing should be told to serve and file a notice of appeal on the next business day after the defendant is sentenced.
Filing a late notice of appeal
If the notice of appeal is not properly drafted, filed and served within the 30 day deadline and if that failure was due to an error committed by the defendant’s sentencing lawyer or by a public servant, then the defendant may request permission to file a late notice of appeal. Such a request is also permitted if the sentencing/trial attorney dies or becomes incapacitated. 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 with due diligence but not later than one year and 30 days from 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. Any such motion made by the defendant, however, may be denied if the defendant previously indicated to his attorney that he had no desire to appeal or if he simply failed to notify his attorney that he wanted him to file a notice of appeal.
Do not relieve the sentencing attorney of his obligation to file the notice of appeal
Under no circumstances whatsoever should the defendant or anyone else relieve the attorney who represented the defendant at sentencing from his obligation to file the notice of appeal. If the defendant does this, then the defendant may be precluded from seeking permission to file a late notice of appeal. If the defendant does not trust the attorney who represented him at sentencing to properly file the notice of appeal, then he may hire another attorney to perform that function. But if he does that, he should not tell the attorney who represented him at sentencing that he is hiring another attorney to file the notice of appeal as the sentencing lawyer may construe such an action by the defendant as a decision to relieve the sentencing lawyer of that responsibility. Quite to the contrary, even if the defendant retains alternate counsel to file and serve the notice of appeal, the defendant should still tell the attorney who represented him at sentencing both verbally and in writing that he wants him to file and serve the notice of appeal. Furthermore, if the defendant does hire an attorney other than the lawyer who represented him at sentencing to file the notice of appeal he must tell that new lawyer not to tell the sentencing attorney that he has been retained to file the notice of appeal.
If the defendant does hire an alternate attorney to file the notice of appeal, it is still possible that the attorney who represented the defendant at sentencing will also file a notice of appeal in which case two notices of appeal will have been filed and served. If that happens, do not worry about it. There is no harm in filing multiple notices of appeal.
It is possible, although unlikely, that at the time of the defendant’s sentence the trial attorney may send someone else from his office to represent the defendant or the lawyer may simply ask a colleague to step in and represent the defendant at sentencing either because the trial lawyer is ill or because of some other unforeseen circumstance. In that event, the defendant’s trial attorney was never actually relieved of his responsibility to represent the defendant and, therefore, he arguably is still responsible for filing a notice of appeal if requested to do so. However, there is also an argument that the attorney who represented the defendant at sentencing has the obligation to file the notice of appeal. If the defendant finds himself in this kind of a situation then he must tell both his trial attorney and the attorney who represented him at sentencing that he wants them to file the notice of appeal. And the defendant should not only do so verbally but in writing as well.
What to do if the lawyer refuses to file a notice of appeal
Some lawyers will refuse to file the notice of appeal even if asked to do so and claim that the appellate attorney has the obligation to file the notice of appeal. However, the appellate attorney is not responsible for filing the notice of appeal. Court rules explicitly put this responsibility on the trial attorney or the attorney who represented the defendant at sentencing. Furthermore, practically speaking, there simply is not enough time to find a separate attorney to both handle the appeal and agree to file the notice of appeal within the very short 30 day time limit. Additionally, if the defendant is indigent and requires the assistance of a public defender to handle his appeal, it will usually take several months before the public defender is assigned to handle the defendant’s case and by that time the deadline for filing the notice of appeal will have passed. Other lawyers will simply refuse to file the notice of appeal on the mistaken belief that once the defendant is sentenced the lawyer has no further duty to provide legal assistance to the defendant, including having no duty to file a notice of appeal. Some lawyers will attempt to charge a fee in return for filing the notice of appeal. However, even if the defendant owes money to the trial attorney, the trial attorney may not refuse to file the notice of appeal on the grounds that his legal fees or expenses have not been paid. Nevertheless, there are lawyers who will refuse to file the notice of appeal unless they are paid money.
If the sentencing lawyer refuses to file the notice of appeal, then the defendant should still go ahead and send that lawyer a letter requesting that the lawyer file the notice of appeal. In addition, if the defendant is able to, he should hire another lawyer to send a letter to the sentencing lawyer indicating that the defendant requests that the sentencing attorney file the notice of appeal. Obviously, these written notices must be received by the sentencing attorney before the 30 day deadline for filing the notice of appeal expires. Affidavits of service should be completed and retained for the letters that are mailed and copies of the letters themselves should also be retained as these documents will be needed when the defendant files the inevitable motion requesting permission to file a late notice of appeal.
The defendant may wish to also have family members and friends write letters to the sentencing lawyer indicating that the defendant has requested that a notice of appeal be filed. Those family members or friends should keep a copy of any such letter for their files and indicate on that copy the date that the letter was placed in the mail, that appropriate first class postage was affixed to the envelope within which the letter was enclosed and the address to which the letter was mailed. If possible, family members or friends should take another copy of the letter and place that copy in an envelope addressed to the lawyer and personally deliver it to the lawyer’s office. If the office is not open, then the letter should be taped to the door of the lawyer’s office. Thereafter, the family member or friend should make a notation on their copy of the letter indicating the date on which this was done and the address to which the letter was either delivered or posted. Family members or friends can also call the sentencing/trial attorney and tell him verbally that the defendant wants a notice of appeal filed and then make a notation on a separate piece of paper indicating the date that the call was made and that the attorney was told that the defendant wants the attorney to file a notice of appeal. They can also leave a message on the attorney’s voicemail to this effect and likewise indicate on a separate piece of paper the content of the message, the phone number that was dialed and the date that the message was left on the voicemail. E-mails can also be sent. If the lawyer states that he will not file the notice of appeal, then the best practice would be to do all of these things i.e. hire another attorney, leave voicemail messages, hand deliver or tape the letter to the lawyer’s door and mail the letter to the attorney.
Be aware that if you simply send an email or leave a voicemail message, that there is no legal presumption that such messages were received by the intended recipient. Therefore, email or voicemail messages alone are insufficient. Furthermore, as to any verbal communications, the lawyer can always deny that you instructed him to file the notice of appeal. A letter indicating that the defendant wants the lawyer to preserve the defendant’s right to appeal must be mailed and/or hand deliver to the lawyer or posted to the lawyer’s door as aforementioned. The best practice is to both mail the letter and either hand deliver or post the letter to the lawyer’s door. In legal parlance, this procedure is referred to as “nail and mail.” Simply talking to the lawyer, leaving a voicemail message or sending an email will be of some help, but standing alone is insufficient to adequately protect the defendant’s rights.
Any letter sent by a family member or friend to the sentencing/trial attorney could include the following language: “Please be advised that (state defendant’s name) has asked me to advise you that he wants you to take all steps necessary to preserve his right to appeal including filing and serving a notice of appeal.”
All voicemail messages, letters and verbal communications must be received by the trial attorney before the 30 day deadline for filing the notice of appeal lapses.
Although others may assist the defendant in informing the lawyer that the defendant wants the notice of appeal filed, the decision to appeal must, in the first instance, be made by the defendant, not a family member, friend or independent attorney. Accordingly, the family member/friend/independent attorney should know based on some past communication with the defendant that the defendant wants to appeal before relaying this information to the trial/sentencing lawyer.
Having family members, friends or an independent lawyer speak to or write letters to the sentencing lawyer does not relieve the defendant, himself, of the obligation to instruct the sentencing attorney in writing to file a notice of appeal. The defendant must mail this written instruction to his lawyer even if others give the same instruction to the lawyer. The letters from friends and the independent lawyer will simply serve to corroborate the defendant’s contention that he told his lawyer to file a notice of appeal. If the defendant is incarcerated, he may have difficulty mailing out a letter to his lawyer. Nevertheless, the defendant should make every effort to mail the letter and then make written notes indicating the nature of those efforts and the dates on which those efforts were made. The defendant should keep a copy of these notes and the letter for his files.
All of these letters, documents and notations made by the defendant, his family members, and/or an independent attorney can be used in support of a motion requesting permission to file a late notice of appeal.
Get a second opinion
There are many circumstances in which trial attorneys have made serious mistakes when filing the notice of appeal. Trial attorneys have been known to serve the notice of appeal on the wrong clerk rendering it completely useless. The lawyer may have incorrectly stated on the notice of appeal which court the appeal is being taken to. Attorneys have drafted defective affidavits of service. Lawyers have served the notice of appeal on the wrong prosecutor. There are also many circumstances in which lawyers fail to maintain a copy of the affidavit of service thereby preventing the defendant from having any proof of proper service. The list of errors goes on. These errors are made even by attorneys who have categorically insisted to their clients that a notice of appeal has been properly drafted, filed and served.
The defendant should have an independent attorney experienced in criminal appellate litigation make a determination as to whether or not the notice of appeal was properly drafted, filed and served. The defendant should procure this second opinion well before expiration of the one-year, 30 day deadline to make a motion asking permission to file a late notice of appeal.
If there is any question about whether or not there was some error in the drafting, filing or service of the notice of appeal, then the defendant can make a motion asking permission to file a late notice of appeal. Indeed, even if everything about the notice of appeal appears to be proper, there is always the possibility that the prosecutor could challenge the legitimacy of the notice of appeal at some later date. He could, for example, claim that he never received any copy of the notice of appeal and claim that the stamp indicating service on the district attorney was faked. The wrong sentence date could be included on the certificate of conviction resulting in the notice of appeal actually having been filed after the 30 day deadline. The court clerk could lose the notice of appeal and then claim that it was never filed. The district attorney could then claim that the date stamp on the notice of appeal was actually faked. Further, that date stamp may indicate service only on the clerk of the court without saying which clerk of the court received the notice of appeal thereby leaving the defendant with insufficient proof of filing with the proper clerk.
The only way to guard against the occurrence of such problems is to file a motion asking permission to file a late notice of appeal. In that motion the defendant would indicate that the reason he is making the motion is because he is not sure whether or not all the procedures for the proper filing of a notice of appeal have been complied with and he wants a final determination of the matter made by the court. If the court determines that the notice of appeal was properly filed, then it will probably indicate that in its decision. Once such an order is issued, then the matter is settled finely and completely. If there was some defect in the filing then, assuming that the motion was properly made, the court should give the defendant permission to refile.
Is a nonlawyer permitted to file a notice of appeal?
This article has consistently emphasized the need to have a lawyer prepare and file the notice of appeal. That being said, there is no rule or law that mandates that the notice of appeal be drafted, filed or served by a lawyer. It can be done by a layman. And it does not have to be done by the defendant. If the defendant or a family member decides to file the notice of appeal himself, he should not relieve the sentencing/trial attorney of his obligation to file the notice of appeal because, as stated previously, doing this could preclude the defendant from later filing a motion asking for permission to file a late notice of appeal. Indeed, if the defendant chooses to file the notice of appeal on his own, he should not even tell the sentencing attorney that he is going to do this because the sentencing attorney may construe such an action on the part of the defendant as relieving the lawyer of his obligation to file the notice of appeal. If the defendant decides to file the notice of appeal on his own or have a family member or friend file the notice of appeal, the defendant must still notify his sentencing/trial attorney both verbally and in writing that the defendant wants the lawyer to file and serve the notice of appeal. There is no harm if multiple notices of appeal are filed.
If the defendant decides to file a notice of appeal on his own, he can use a form that exists on one of the appellate division websites as a guide. The defendant should be sure that the notice of appeal includes the defendant’s indictment number, indicates the correct Appellate Division to which the appeal is being taken, indicates that the appeal is from a judgment of conviction, indicates the court from which the appeal is being taken, includes the caption of the case (i.e. People v. John Doe) on the upper left-hand side of the page and has the words “NOTICE OF APPEAL” prominently displayed and set off in the upper right-hand corner of the page with the indictment number and county of conviction stated just below those words.
As an example, if the defendant’s name is John Doe and he is appealing to the Appellate Division, Second Department, from a conviction in Queens Supreme Court then the body of the notice of appeal may include the following: “Please take notice that the defendant, John Doe, hereby appeals to the Appellate Division, Second Department, from a judgment of conviction and from a sentence of the Queens County Supreme Court and further appeals from every part thereof and every intermediate order made therein.” The words “notice of appeal” in boldface type should then be placed in the upper right-hand corner with the defendant’s indictment number and county of conviction just beneath those words and the caption of the case to the left thereof.
The defendant will then have to determine the location of the appropriate clerk where the notice of appeal is to be filed and file two copies of the notice of appeal with that clerk. Pursuant to CPL 460.10 (1)(a), the notice of appeal must be filed with “the clerk of the criminal court in which [the defendant’s] sentence was imposed.” The defendant will also have to make service on the appropriate prosecutor(s). The certificate of conviction will indicate the date of sentence and that should be procured from the clerk of the court. All of this must be done within 30 days of the date of sentencing. However, these things are the minimum that must be done to properly file a notice of appeal. Other things not mentioned herein may also have to be done. A copy of the certificate of conviction and a copy of the notice of appeal as well as documentation indicating both proof of service and proof of filing of the notice of appeal must be maintained at least until the appeal is finally determined by the appellate court.
Some defendants do instruct their attorneys to file the notice of appeal and then also file an additional notice of appeal on their own as a backup measure. Furthermore, if the trial attorney refuses to file a notice of appeal and the defendant cannot find another attorney to perform this function, then the defendant may choose to file the notice of appeal on his own or have a family member or friend do it. But no matter what the defendant chooses to do, it is absolutely essential that the defendant not relieve his sentencing/trial attorney from his obligation to file and serve the notice of appeal. The defendant must instruct his trial/sentencing attorney both verbally and in writing to file a notice of appeal even if the defendant is going to file the notice of appeal on his own and even if the defendant is going to hire another attorney to also file a notice of appeal.
Separate rules for defendants charged with only a misdemeanor or a violation
If the defendant was originally charged only with a misdemeanor or a violation, then the above rules are not necessarily applicable and the procedure for preserving the defendant’s right to appeal can be quite complicated. The defendant should consult a qualified criminal attorney to advise him about these rules.
Relevant section of the criminal procedure law
The rules regarding how to file a notice of appeal and the steps that you need to take to preserve your right to appeal are found in article 460 the criminal procedure law. However other rules and laws including court rules may also be applicable.
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 rules that must be complied with in order to properly file 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 716-447-7899 or 716-447-7901.