Important Issues to Consider for People who have been Convicted of a Crime.
Below is a discussion of various issues that should be of interest to individuals wishing to proceed with postconviction litigation after having been convicted either by way of a guilty plea or as a result of a verdict after trial. A table of contents precedes a discussion of the topics addressed.
TABLE OF CONTENTS
1-Consequences of conviction
2-Presentence interview conducted by the department of probation
3-Procuring the transcript and other documents
4-Contacting witnesses
5-Having affidavits signed
6-Dismissal due to failure to timely submit a brief – direct appeal
7-Preserving further rights to appeal after your direct appeal to the Appellate Division or your 440 motion to the trial court has concluded
8-Risks of winning
DISCUSSION
1- CONSEQUENCES OF CONVICTION
People are generally aware of the fact that upon conviction some sort of punishment will be forthcoming either in the form of probation, jail time, a fine or some combination of the above. But there are other potential consequences associated with being convicted of a crime. If you are not a citizen of the United States, being convicted of a crime may result in your deportation. Furthermore, if a noncitizen is convicted of certain crimes enumerated in federal law, then deportation is mandatory. Additionally, even if being convicted of a crime does not result in your deportation, it may preclude you from becoming a U.S. citizen in the future.
If you are not a U.S. citizen, then a criminal conviction - - and even a conviction for certain violations - - may preclude you from being able to re-enter the United States should you exit the country temporarily for some reason. So, for example, if a non-citizen has been convicted of a particular offense and he takes a trip to Canada then, upon his return, even if he was not previously deported as a result of that conviction, he could, nevertheless, be denied re-entry to the United States.
Many criminal lawyers are unfamiliar with immigration law. Accordingly, if you are charged with a crime or a violation and you are not a U.S. citizen then you should seek the counsel not only of a criminal attorney but an immigration attorney who has knowledge of the immigration consequences of criminal convictions.
Being convicted of a crime may preclude you from becoming a member of a particular profession such as an accountant, lawyer, teacher or engineer. It may also prevent you from becoming certified in other professions and may preclude you from certain educational opportunities. If at the time of your conviction you are already certified to practice in a certain profession, you could be stripped of that certification. Certain criminal convictions may also operate to deny you certain government benefits such as the right to live in public housing. Being convicted of a crime may preclude you from being able to procure a license to possess a weapon and may cause any license that you do have to be revoked. In New York, if you have been convicted of certain crimes, then it is illegal for you to possess certain weapons including weapons that people are generally permitted to possess without a license. P.L. 265.01 (4).
The above are simply examples of certain collateral consequences associated with criminal convictions. This list is by no means exhaustive and there are certainly many other consequences associated with being convicted of a crime. Many collateral consequences associated with a criminal conviction are dealt with in civil courts, not criminal courts. So, criminal lawyers may not have the background or expertise necessary to fully advise you on this matter.
2-PRESENTENCE INTERVIEW CONDUCTED BY DEPARTMENT OF PROBATION
Generally, in order to take a guilty plea, the defendant must stand before the judge in open court and admit his guilt on the record and he must also acknowledge that by pleading guilty he is giving up numerous rights such as the right to a jury trial and to cross-examine witnesses. This statement to the court is referred to as an allocution.
Whether you are convicted of a crime by way of a guilty plea or as a result of a verdict after trial, you must be interviewed by an officer in the department of probation who will then draft a presentence report which the judge will review for purposes of sentencing you. If you have taken a guilty plea, then the judge at the time of sentencing will expect the presentence report to indicate that you re-affirmed your guilt to the probation officer and expressed remorse for having committed the crime. If the probation report indicates that you did not admit your guilt or express remorse to the probation officer, then, upon learning this information, the judge could become very displeased. He may withdraw your plea and force you to go to trial or there is even the possibility that he could allow the plea to stand but then enhance your sentence for failing to admit your guilt to the probation officer.
If the judge withdraws your plea either because of your failure to admit guilt to probation or for any other reason, your admission of guilt during the course of the plea allocution probably cannot be used against you at a future trial on the people’s direct case. However, there is some question about whether or not it could be used to impeach you should you choose to testify at a subsequent trial and deny your guilt. Furthermore, if you admitted your guilt under oath as part of a plea allocution and the plea is thereafter withdrawn, then, if you later testify at trial that you are not guilty, you may be charged with perjury.
An Alford plea is a plea where the defendant’s lawyer enters a guilty plea for the defendant but the defendant does not personally admit guilt to the judge as part of the plea allocution. If you have taken such a plea, the judge should not harbor any ill will towards you for declining to admit your guilt to the probation officer since you had previously indicated that you did not wish to admit your guilt to the judge in the first place. Indeed, it would be inconsistent for someone to both take an Alford plea and then admit his guilt to the probation officer. Be aware, however, that it is a rare circumstance in which the judge will permit the defendant to take an Alford plea.
If you have been convicted after trial, then logic would dictate that the judge certainly has no right to expect that you will thereafter admit your guilt to the probation officer since during the course of the trial you necessarily denied your guilt. Nevertheless, if you deny your guilt to the probation officer in a case where you were convicted after trial, the judge could enhance your sentence because you did not admit your guilt and express remorse for the crime that you were convicted of. However, if you admit guilt to the probation officer in a case where you went to trial this can also create serious problems you.
The presentence report prepared by the department of probation is usually sent up to the Appellate Division that will hear your appeal. If the appellate judges read that you admitted your guilt to the probation officer, then this will probably harm your chances of winning the appeal. The appellate judges may question why they should reverse a jury’s guilty verdict if the defendant has conceded the accuracy of that verdict. The appellate court may also feel that if the defendant was guilty, then he should have simply pled guilty instead of forcing the government to go to the expense of granting the defendant a trial.
If you testified at trial and denied your guilt but then turn around and admit your guilt to the probation officer, then one could construe that admission of guilt as also being an admission that you perjured yourself when you swore under oath before the jury that you did not commit the crime.
If your conviction is reversed on appeal, then it is possible that the appellate division could simply dismiss your case. However, it is highly unlikely that the appellate court will dismiss the case. Usually, if the conviction is reversed then the case is sent back down to the trial court where you may either take a plea or proceed to a new trial. If you deny your guilt to the probation officer and your conviction is subsequently reversed on appeal and you thereafter take a guilty plea, you will then be in a position of having denied your guilt to probation while also admitting your guilt to a judge at a subsequent plea allocution. Such conflicting statements could then create other problems for you. If you admit guilt to the probation officer and your conviction is subsequently reversed and you then proceed to trial, the prosecutor may try to introduce that admission into evidence against you at that trial.
Many lawyers advise all their clients who have been convicted after trial to decline to speak to the probation officer regarding the facts of the case on the grounds that the case is pending on appeal and still open and that anything that the defendant tells the probation officer could be used against the defendant at a future proceeding. However, you should consult with your own lawyer about whether or not it is advisable for you to discuss the facts of your case with the probation officer. That being said, you should cooperate with the probation officer regarding standard pedigree questions such as your age, date of birth what schools you went to, jobs that you had in the past etc. Be aware, however, that the probation officer may ask you questions regarding past uncharged criminal activity. If you admit to having committed a prior uncharged crime, such an admission could be used against you in the future.
Especially if you have been convicted after trial, you should ask your attorney to be present with you during your interview with the probation officer. There is a good chance that even if you denied your guilt by going to trial that the probation officer will try to get you to admit that you are guilty of the crime. If your attorney is present during the interview, he can protect you from such efforts and he can also act as a witness in the event that the probation officer has a recollection of statements made at the interview which differs from your own. The probation officer is a law enforcement agent. At least in so far as your presentence interview with the probation officer is concerned, the probation officer is your adversary. He is not your ally.
3-PROCURING THE TRANSCRIPT AND OTHER DOCUMENTS
You should insist that your appellate attorney give you a complete copy of all transcripts generated in the trial court including the full trial transcript, the transcript of the jury selection and the transcripts of any pretrial hearings and/or court appearances. Your appellate attorney should give you copies of the transcripts as soon as he receives them. You obviously need a copy of the transcripts well before your attorney submits his appellate brief so that you can participate in the drafting of that brief. You should keep these transcripts for your records. Some county clerks have adopted a policy of removing/redacting out the names of jurors in the jury selection portion of the transcript. You should object to receipt of such a transcript and should insist on receiving an unredacted copy of the transcript that includes the names of all jurors and witnesses. You need to know whether someone who indicated an inability to fairly judge your case was, nevertheless, seated as a juror in your case. However, it is impossible to make this determination if the names of the jurors in the transcript are blacked out. You obviously also need to know the names of all witnesses who testified against you at trial.
If your assigned appellate attorney refuses to give you a copy of the transcript or insists on giving you a redacted or edited version of the transcript then you may wish to make a motion to the Appellate Division requesting that you be given an unredacted copy of the transcript. You could predicate your request on the grounds that an unredacted transcript is necessary in order for you to be able to assist in your appeal and draft a pro se supplemental brief. If you are planning on retaining private counsel to handle your appeal, then you may wish to first get an agreement from that attorney that he will provide you with a complete unredacted copy of all transcripts before actually retaining his services.
Some appellate attorneys will only order portions of the trial transcript or only include portions of the trial transcript in the appendix that accompanies the appellate brief. However, you, as the client, should insist on receiving the complete transcripts, not just the portions that your appellate attorney thinks are relevant to your appeal. You have a right to review the entire trial record and you should not let your appellate attorney decide for you what portions of the transcript you are entitled to. As a practicing criminal appellate attorney, I always send out a full and complete copy of any and all transcripts to my clients.
Be aware that prison officials at any time can seize your property including all your legal papers and simply throw them away. Accordingly, you should have someone outside of your correctional facility retain copies of all your legal paperwork and transcripts.
If you meet basic indigency requirements, then you are entitled to receive a free transcript. Do not pay a stenographer for a transcript with your own money without first determining whether or not you are entitled to a free transcript. Furthermore, if you decide to pay for a transcript using your own money, then do not do so until you first determine that a copy of that transcript does not exist somewhere else. Pretrial hearing transcripts, for example, should have been procured prior to commencement of the trial and it should not be necessary for you to pay for another copy of such a transcript.
If your direct appeal has already been completed and you are considering some other type of post-conviction litigation, then the entire transcript should be in the clerk’s office. Be aware that there are different types of clerks. For example, there is a county clerk and there is a clerk of the court. When searching for your transcript, you should check the offices of all clerks. Be aware that your transcript may not be at a clerk’s office on any particular day because someone, such as the judge or the prosecutor, may have removed the transcript temporarily from the court file in order to review it. Additionally, even if the transcript is at a particular clerk’s office, an inexperienced employee of that office may wrongly tell you that the transcript is not there when in fact it is. Accordingly, if someone at the clerk’s office tells you that there is no transcript there, you may wish to come back another day and speak to another individual, preferably a supervisor, to confirm whether the transcript is present. If you cannot find your transcript in a clerk’s office, then you should search for it in other places such as law libraries associated with the court, archives, the Appellate Division, your prior appellate counsel etc. Anyone conducting a search for the transcript should always bring with him the indictment number and the correct spelling of the defendant’s name.
Once the transcript is located, you may be able to get a copy of it by paying a very small photocopy fee to the clerk. Ordering the transcript from the stenographer, however, will be much more expensive. There are many circumstances in which people have paid several thousands of dollars to a stenographer for a transcript only to find out later on that the identical transcript existed somewhere else which could have been copied and procured for less than a hundred dollars.
If you are going to be purchasing a transcript from the stenographer, do not pay the stenographer any money until she first presents you with a written statement indicating the dates of the proceedings that she is going to transcribe, the cost per page and an estimate of the number of pages to be transcribed. State law limits the fees that stenographers are permitted to charge. See New York Court rules sections 108.1 through 108.5.
Stenographers are not required to keep their notes indefinitely. You would be well advised to procure your transcripts as soon as possible after your conviction.
You should also get copies of other pertinent documents from your attorney such as the jury notes, the verdict sheet, the indictment, your trial attorney’s request for a bill of particulars and the people’s response thereto, any decisions handed down by the trial court and any motions filed by your trial attorney or the prosecutor etc.
You should not let your appellate attorney submit the brief before you have a chance to review it. You should send a letter to this effect to your attorney and keep a copy of that letter for your files. In that letter you should explain to your attorney that you have a right to participate in your own defense and that you cannot fully exercise that right without reviewing the brief that is to be submitted to the court.
4-CONTACTING WITNESSES
It may be necessary to contact a juror or prosecution witness even after your trial has concluded. If such contact is necessary, it should be made by an investigator under the supervision of an attorney. If you or someone acting on your behalf attempts to contact a juror or prosecution witness without using a lawyer as an intermediary, that could startle the juror or witness and prompt him to file a complaint against you with the police or prison officials. Furthermore, if someone not trained in the law speaks with a juror or witness, he could unwittingly make a statement that subjects himself to prosecution for obstruction of justice. Additionally, if a defendant speaks with a juror or witness, that juror or witness could falsely claim that the defendant made a statement that subjects the defendant to prosecution for obstruction of justice or witness intimidation. All of the above concerns become especially problematic if an attempt is made to contact a child witness or a witness who claims to have been the victim of a sex crime. It is also worth noting that the court reviewing any particular case may be displeased if it learns that the defendant, as opposed to a lawyer, attempted to contact a prosecution witness or a juror.
If you attempt to contact any individual who has an order of protection outstanding against you, then you may be charged with violating that order of protection. If a witness or juror lives outside of New York State, be aware that there may be laws in those states which preclude even a lawyer or an investigator from attempting to contact such individuals. If you need to contact a juror or witness in a state other than New York, then you may need to hire an attorney admitted to practice law in that other state and ask him to contact the individual.
You should not share the names of jurors or trial witnesses with anyone other than your lawyer. You should not post the name of any juror or witness to the internet or otherwise divulge their identity to anyone. Various laws protect the privacy rights of these individuals.
5-HAVING AFFIDAVITS SIGNED
Motions such as a 440 motion or a motion asking permission to file a late notice of appeal usually require that an affidavit be signed by the defendant and/or a witness. If you are planning on retaining counsel to file such motions for you, then you should not sign any affidavit or ask a witness to sign any affidavit before the attorney has a chance to review the affidavit.
6-DISMISSAL DUE TO FAILURE TO TIMELY SUBMIT A BRIEF – DIRECT APPEAL
A direct appeal is an appeal that a defendant has a right to take directly to the Appellate Division after being convicted in the trial court. This is to be contrasted with collateral postconviction litigation such as a CPL 440 motion which is initiated in the trial courts.
If your case is pending on direct appeal, be aware of the fact that the district attorney could at any time make a motion to dismiss your appeal for failure to submit a brief. Furthermore, the Appellate Division, itself, could, in conformance with its own rules, move to dismiss your appeal for failure to timely submit a brief. Accordingly, it is important for you to be represented by appellate counsel once the notice of appeal has been filed so that he can oppose any attempt to have your direct appeal dismissed. If at any particular point in time you are represented by a government assigned attorney and you wish to switch to a privately retained attorney, then you should retain the private attorney while still represented by your assigned attorney. If you discharge your government assigned attorney and then remain unrepresented for a period of time while you search for private counsel, there is always the possibility that a motion to dismiss your appeal could be made during the period of time in which you are unrepresented.
The fact that you are represented by counsel simply means that you will have an attorney available to oppose a motion to dismiss your appeal in the event that such a motion is made. However, the fact that you are represented by counsel at the time that such a motion is made is no guarantee that you will win the motion. In other words, even if you are represented by counsel and even if your counsel puts in a response to the motion to dismiss, if there is a long period of delay during which no brief was filed with the Appellate Division, your appeal is still subject to dismissal as a consequence of that delay. The longer the delay in submitting the brief, the greater is the likelihood that the dismissal motion will be granted.
The danger of a dismissal because of a delay in submitting the brief is greatest in the first department and in the third department. There is less of a danger that the second department will dismiss your appeal unless that court issues a scheduling order which is violated or you do not respond to a dismissal motion made either by the prosecutor or the court itself.
The fourth department has generally adopted a policy whereby no criminal appeal will be dismissed because of a delay in submission of the brief unless the defendant or his lawyer fails to abide by a scheduling order that is set down by that court or declines to put in a response to a motion to dismiss. In short, at least in the fourth department, if a motion to dismiss your appeal is made either by the district attorney or by the court itself for failure to timely submit a brief, the high likelihood is that if that motion is answered and if your lawyer thereafter complies with the court’s scheduling order that the motion to dismiss will be denied and your appeal will not be dismissed. However, there is no ironclad guarantee of this.
Some appellate courts have specific deadlines for the submission of the brief. Your attorney should consult court rules to determine whether such a deadline exists in your case.
7-PRESERVING FURTHER RIGHTS TO APPEAL AFTER YOUR DIRECT APPEAL TO THE APPELLATE DIVISION OR YOUR 440 MOTION TO THE TRIAL COURT HAS CONCLUDED.
If your direct appeal to the Appellate Division is lost, then you may ask permission to make a further appeal to the New York State Court of Appeals. This is done by way of a leave application. See CPL 460.20 and court rule 500.20. However, there are many lawyers who will decline to file the leave application. That is a mistake. If your case is lost in the Appellate Division then you must insist that your attorney file a leave application with the Court of Appeals. If a leave application is not filed, it will not only preclude you from proceeding further with your direct appeal but it will also preclude you from proceeding with other forms of post-conviction litigation in the future. There is a very strict and short deadline for the filing of such leave applications.
The leave application must indicate that you are asserting on appeal any and all federal constitutional claims raised in your brief to the Appellate Division otherwise you may be precluded from litigating those federal constitutional issues in a subsequently filed federal petition for a writ of habeas corpus.
If you file a motion pursuant to CPL 440 in the trial court and lose that motion, then you must thereafter file a leave application with the Appellate Division asking permission to appeal the trial court’s decision. There is a very strict and short deadline for the filing of such leave applications. That leave application is made by way of motion directly to the appropriate Appellate Division. If the leave application is granted, then you must file a notice of appeal with the clerk of the criminal court that denied the original 440 motion. The decision of the Appellate Division granting leave to appeal must be attached to that notice of appeal and the notice of appeal must be filed within 15 days of the date that the Appellate Division issued the order granting leave to appeal. CPL 460.10 (4); 450.15; 460.15. A copy of the notice of appeal must also be served on the prosecutor within the time limit prescribed in the criminal procedure law [Note: This procedure may be different for people who were originally charged only with a misdemeanor and/or a violation]. If leave to appeal is denied by the Appellate Division or if leave to appeal is granted and the subsequently filed appeal is denied, then your lawyer should file a further leave application with the Court of Appeals.
You should not hire a private attorney to handle either your direct appeal or a 440 motion unless he agrees ahead of time in writing that he will file any necessary leave applications to both the Appellate Division and the Court of Appeals. Additionally, once you have counsel on your case, whether he is an assigned attorney or a private attorney, you should send him a letter telling him to file any necessary leave applications and you should keep a copy of that letter for your records. You should also request that your attorney send you a copy of any leave applications that he does file.
8-RISKS OF WINNING
Except as otherwise indicated herein, if your conviction is reversed on appeal and you are subsequently reconvicted of that same offense, you could receive a greater sentence than that which was originally imposed on you. As a general rule, if you were originally convicted after a trial, the probability of receiving an enhanced sentence due to a reconviction after a subsequent trial is low, although the possibility does still exist. However, if some new information comes to light that was not known to the court at the time of the original trial, then that increases the possibility of receiving an enhanced sentence. Of course, it is also possible that if you are convicted at a second trial that you could receive a lighter sentence than that which you received at the initial trial. And, of course, the possibility exists that you could be acquitted at a second trial.
If your previous conviction was as a result of a plea, then, as a general rule, there is no bar to receiving an enhanced sentence after a reconviction. A possible exception to this rule would be if you had originally received the maximum sentence for the crimes of conviction and there were no other crimes that you could have been prosecuted for at or around the time that you took the initial plea. Of course, it is also possible that if your original conviction resulting from a guilty plea is reversed on appeal that when the case is sent back down to the trial court you could receive a reduced sentence or a dismissal or you could receive an acquittal after a trial.
If you are asking the appellate court to remand your case for resentencing, the granting of that request may subject you to receiving an enhanced sentence. However, the risk of receiving an enhanced sentence in this situation is less than the risk of receiving an enhanced sentence when the reversal is from a guilty plea and you thereafter proceed to a full trial of the case.
There is no risk of receiving an enhanced sentence if on appeal the only thing that you are asking the Appellate Division to do is (1) reverse your conviction due to legal insufficiency of the evidence (2) reverse your conviction on the grounds that it was against the weight of the evidence or (3) reduce your sentence in the interests of justice (For a description of the above options, see the web page titled “New York appellate court powers”).
If there are any crimes that the prosecutor could charge you with but has not charged you with, then, if your conviction is reversed or if you initiate 440 litigation, it could prompt the prosecutor to formally charge you with those offenses, assuming that any statute of limitations which might exist for those offenses has not lapsed.
Sometimes after a defendant is convicted of a crime, he may still have other crimes that remain open and pending against him. Many times, in such circumstances, the prosecutor will dismiss these other crimes as covered by the crime of conviction. However, if the defendant appeals any of the crimes for which he was convicted and the Appellate Division reverses one or more of those convictions, then the prosecutor may be able to reopen the cases that he had previously dismissed as covered and, as to those cases, the defendant may not be able to assert a statute of limitations defense.