New York Criminal Appeals

What Exactly can be Appealed after Conviction in New York

In this article, New York Criminal Appeals Lawyer Tom Theophilos discusses what sorts of issues the New York Appellate Courts decide.

Most people know that after conviction there is usually talk of an appeal. Before proceeding with an appeal, however, an experienced criminal appeals lawyer should review the trial transcript to see what issues can be presented to an appellate court. This article reviews the basic rules regarding the types of issues that can be appealed and how the appeals courts in New York approach those issues.

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.

What can be Appealed in a Criminal Case in New York- What Issues do the Appeals Courts Decide?

They Mostly Decide Issues of Law - Not Fact

As a general rule, New York appellate courts only decide issues of law, not issues of fact. An issue of law is something that requires the trial judge to conduct an analysis of the law before making a decision.

For example, if a prosecutor wants to introduce certain evidence at trial and the defense attorney objects, the judge will do research on the law to determine whether the introduction of the evidence is allowed. The judge will then make a decision either to allow the introduction of the evidence over the objection of the defense lawyer or not to allow the introduction of the evidence.

If the judge admits the evidence over the defense lawyer's objection, and the defendant is later convicted, a criminal appeals lawyer may seek to appeal the conviction on the grounds that the trial judge made a mistake of law.

An issue of fact, however, generally deals with an analysis of evidence that has already been put before the jury.

For example, if one witness at a trial testifies that John had a gun and another witness testifies that John did not have a gun, then the decision about whether John did or did not have a gun is an issue of fact.

In a jury trial, it is the jury that decides the facts and the judge who makes decisions about the law. The jury also decides whether or not a witness should be believed (also called credibility of a witness). Credibility of witnesses is like an issue of fact for purposes of appeal. Therefore, as a general rule, appeals courts will not usually make their own judgments about the credibility of witnesses at a trial.

Legal Insufficiency of Evidence

There are exceptions to the general rule that appellate courts do not consider the facts of a case. For example, an appellate court can reverse a conviction and dismiss a case on the grounds of legal insufficiency of the evidence. Such a ruling basically overrules the jury’s findings of fact. This, however, would only happen if an appellate court concludes that a jury’s factual findings are unreasonable based on the evidence presented. If a defendant’s conviction is reversed on the basis of insufficient evidence, then the defendant cannot be retried. Instead, the case is simply dismissed.

Reversals of convictions on the grounds of legal insufficiency of the evidence are extraordinarily rare. (Read a description of how New York appellate attorney Tom Theophilos won a reversal of a conviction based on insufficiency of the evidence).

Interest of Justice Jurisdiction

Intermediate appellate courts are the courts just above the trial courts and below the New York Court of Appeals, which is the highest court in the state. (See New York criminal appeals process for a more detailed discussion of the organization of the appellate courts in New York State). The intermediate appellate courts in New York State have what is referred to as interest of justice jurisdiction. Using this power, these courts can reassess the evidence, sit as a second jury, and reverse the conviction based on their own assessment of the facts.

No other New York courts have this power. The New York Court of Appeals cannot do this nor can the United States Second Circuit or the U.S. Supreme Court.

The Appellate Divisions rarely invoke interest of justice jurisdiction to reverse a criminal conviction.

Interest of justice jurisdiction can also be used to ask a New York intermediate appellate court to reduce the defendant’s sentence.

Errors at Trial Must be Preserved for Appeal by the Trial Attorney

As a general rule, even if a mistake is made by the trial judge the appellate court will not address that issue unless the defense attorney objected to the error in the trial court when the error occurred.

That means that if the judge makes a mistake, it is up to the trial lawyer to object right away on the record. If the trial lawyer misses the opportunity and fails to make a specific objection to the trial judge's mistake, the opportunity to appeal a conviction based upon that mistake may well be lost.

The reason appeals courts require that trial lawyers make objections is that the trial attorney may have a valid strategy reason for not objecting. For example, if the prosecutor attempts to introduce into evidence a document that has information on it that is beneficial to the defense, then the defense attorney may choose not to object even if he could have objected. And there are a variety of other possible strategy reasons for not objecting.

There are exceptions to the rule requiring timely objections. If the mistake complained about in the appeal was especially bad, then both the federal and state appellate courts may yet consider the error even if the trial lawyer failed to preserve the issue with a timely objection.

Harmless Error

Even if there were an error made in the trial court and the trial lawyer objected at just the right time, this does not automatically mean that the conviction will be reversed.

The error must be significant enough so that the appellate court is convinced that had the error not occurred it is likely that the result at the trial level would have been different. The legal term for this is harmless error analysis. Therefore, an appellate court can conclude that there was error committed by the trial court, and conclude that the trial lawyer made a timely objection, but then still decide that the error was harmless and therefore sustain the conviction.