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 a judge to conduct an analysis of the law before making a decision on the issue presented to him.

For example, if the prosecutor wants to introduce certain evidence at trial and the defense attorney objects, the trial judge will do research to determine whether the law permits the evidence to be put before the jury. The judge will then make a decision either to admit the evidence over the objection of the defense lawyer or to exclude the evidence. The trial judge’s decision raises an issue of law which can be reviewed on appeal by an appellate court.

An issue of fact, however, generally deals with an analysis of evidence that has legally and without objection been put before the jury. For example, if one witness at a trial testified that John had a gun and another witness testified that John did not have a gun, the decision about whether John did or did not have a gun is an issue of fact. This factual determination made at the trial level is usually not something that appellate courts will consider if the defendant chooses to appeal his conviction.

In the trial court, if the defendant is tried before a jury, then it is the jury that decides the facts and the trial 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). However, if the defendant waived a jury trial and agreed to be tried only by a judge then the trial judge, in addition to deciding issues of law, would also decide any factual issues and would make all determinations regarding witness credibility. When the judge tries the case alone without a jury, that type of trial is generally referred to as a “bench trial.”

Determining the credibility of witnesses is like determining an issue of fact for purposes of appeal. Therefore, as a general rule, appeals courts will also not make their own judgments about the credibility of witnesses who testified at 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. A reversal on this basis can occur when the evidence presented at trial is not sufficient to permit a reasonable jury to conclude that the defendant committed the crime charged. For example, if a defendant is charged with murder and the only evidence presented against him is that he previously got into an argument with the victim, such evidence, standing alone, would not be sufficient to convict the defendant of the crime. If the jury, nevertheless, went ahead and convicted the defendant of murder, then the appellate court may set aside the conviction on the grounds of legal insufficiency of the evidence. When making this assessment, the court will not make its own determination of the facts. Instead, it will accept the facts indicated in the transcript as true and if there is a conflicting set of facts then the court will view the facts in a light most favorable to the prosecution.

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 reversals based on a claim of legal insufficiency of the evidence in the cases of People v. Klyde Glenn and People v. Peloso).

WEIGHT OF THE EVIDENCE 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 weight of the evidence jurisdiction. Exercise of this jurisdictional power constitutes another exception to the general rule which precludes appellate courts from making factual assessments.

Using this power, these courts can sit as a second jury and reassess the evidence based on a review of the trial transcript and then dismiss one or more counts of the indictment based on its own assessment of the facts. So, for example, assume that John is charged with murder and assume that a witness testified at trial that he saw John shoot the victim and that the victim thereafter died. Such evidence would be legally sufficient to convict. Accordingly, if such evidence was presented at trial, the appellate court would not reverse the conviction on the grounds of legal insufficiency of the evidence. However, under the court’s weight of the evidence jurisdiction, the court could conclude on its own that the person who testified that he saw John shoot the victim was not a credible witness and reverse the conviction on that basis. A determination that a conviction of one or more counts in an indictment is against the weight of the evidence results in not only a reversal of the conviction for those counts but also causes those counts to be dismissed.

Such a dismissal precludes the prosecution from retrying the defendant on those counts. Furthermore, the prosecutor may not appeal such a ruling. However, the Appellate Division virtually never exercises its discretion to set aside a conviction as being against the weight of the evidence (read a description of how criminal appeals lawyer Tom Theophilos received a dismissal of numerous counts in an indictment in the case of People v. Peloso based on the Appellate Division’s exercise of its weight of the evidence jurisdiction).

Only the intermediate appellate courts have the ability to set aside a conviction as being against the weight of the evidence. New York State’s highest court, the Court of Appeals, does not have this power.

REDUCING A DEFENDANT’S SENTENCE IN THE INTERESTS OF JUSTICE

If the defendant is convicted after trial, the trial judge will determine the sentence after weighing all the facts and circumstances of the case. However, once the case proceeds on appeal, an intermediate appellate court can exercise its discretion and reduce the defendant’s sentence in the interests of justice. This power to reduce the defendant’s sentence in the interests of justice necessarily involves a reassessment of the facts relevant to the case and therefore constitutes another exception to the general rule that appellate courts will not decide factual issues. However, an intermediate appellate court is not permitted to reduce the sentence below the minimum permitted by law. Only an intermediate appellate court has the authority to reduce the defendant’s sentence in the interests of justice. The Court of Appeals, which is New York’s highest court, does not have this power.

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 at the time that 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 on 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.

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.

As a general rule, a claim of legal insufficiency of the evidence must be preserved in the trial court. This can be done by moving for what is a called a “trial order of dismissal” at the close of the people’s case and then renewing that motion at the close of the defendant’s case. A claim that the conviction is against the weight of the evidence or a request that the defendant’s sentence be reduced in the interests of justice does not need to be preserved in the trial court. Indeed, these latter two claims can only be made in an intermediate appellate court.

Harmless Error

Even if there was 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 sustain the conviction.

However, there are some errors that are not subject to the harmless error rule. Certain errors which affect the mode of proceedings of the courts may require reversal without considering whether the error was harmless. There are also circumstances in which it is impossible to determine whether the error complained of would have made a difference in the results at the trial court and harmless error analysis may be inapplicable for these types of errors as well.

Also, harmless error analysis is inapplicable to the following claims: (1) a claim of legal insufficiency of the evidence; (2) a request to reverse the conviction as being against the weight of the evidence or (3) a request to reduce the defendant’s sentence in the interests of justice.

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 deal with 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 716-447-7899 or 716-447-7901.