New York Criminal Appeals Process

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

Direct Appeal of a Criminal Conviction in New York

The post conviction option that most people are familiar with is the appeal taken directly after a trial or a guilty plea. This kind of appeal is referred to as a direct appeal.

In order to take a direct appeal, the convicted person's attorney must properly draft, file with the appropriate clerk, and serve on the prosecutor a notice of appeal. The notice of appeal must be properly processed. If it is not the defendant may lose his right to appeal his case.

Direct appeals are available in both the state and federal system. In a direct appeal, a defendant is only allowed to argue issues that are on the record. An issue is on the record if it was raised in the trial court. For example, if a trial lawyer objected to the introduction of certain evidence by the prosecutor during the course of the trial and the judge overruled the objection this would be an issue that is on the record.

The balance of this article will discuss the path that a direct appeal takes through the course of the New York State Court system.

New York Criminal Appeals Overview

The process for direct criminal appeals in New York begins after a plea or after a trial in which the defendant has been convicted. Generally, upon conviction, a person in New York has the right to one direct appeal to the appellate division, the appellate term or to a county court. A person who loses this first appeal may request that the New York Court of Appeals review the case. The Court of Appeals is the highest appeals court in New York. As is discussed subsequently, however, the Court of Appeals is not required to hear the case.

Therefore, this general path from conviction after trial or a plea to a first direct appeal as of right to a request for a discretionary review of the first appeal controls the fate of a person accused and convicted of a crime in New York. However, New York divides the job of handling criminal trials and criminal appeals among any number of various courts with different names. Untangling these courts and their sometimes confusing names can be difficult even for those familiar with the legal system.

Understanding the appeals process requires understanding how New York arranges both the criminal trial level and criminal appeals courts.

Trial Level Criminal Courts in New York

Criminal trials in New York are conducted in different courts according to the seriousness of the crimes charged. Less serious crimes are called misdemeanors. Misdemeanors are crimes for which the punishment could at most be one year in jail. More serious crimes are called felonies. Felonies are crimes for which more than one year in prison is a possible punishment.

Outside if New York City the lower level courts that hear and try misdemeanor cases only are called village, town, city or justice courts, but can also be called a variety of other names. However, in each borough of New York City, the misdemeanor level trial courts are called "Criminal Courts". Accordingly, Queens Criminal Court is where all the misdemeanor cases in Queens County are litigated. The name is somewhat confusing as it improperly suggests that all criminal cases originating in Queens are handled in Queens Criminal Court when in fact only misdemeanors are handled in that court.

The same is true for Brooklyn Criminal Court and Bronx Criminal Court. Even more confusing is the name of the Criminal Court in Manhattan. Since Manhattan is really New York County, the name of the court that handles misdemeanors in Manhattan is called New York Criminal Court. This name may suggest that this court handles all criminal cases in New York State or New York City. However, this is not the case. New York Criminal Court only handles misdemeanor cases originating in Manhattan.

The lowest level courts that hear and try felony cases in New York State are referred to as County Courts or Supreme Courts. That's right - Supreme Court. In New York State the lowest court for felonies is sometimes called Supreme Court.

This is the situation in all of the boroughs of New York City. For example, a felony trial in Queens County will be held in Queens Supreme Court. A felony trial in Manhattan will be held in New York Supreme Court. This is extremely confusing. Most people would expect that a Court named "New York Supreme Court" would be the highest court in the state. Instead, New York Supreme Court is the lowest, or trial level court in the state.

Outside of New York City, felonies are handled either in the Supreme Court or the County Court of that particular county. For example, a person charged with a felony in Erie county would have their case heard in either the Supreme Court for Erie County or the County Court for Erie County.

All of these misdemeanor and felony courts are where the original criminal trial or guilty plea takes place. A person who is convicted after trial or a guilty plea can appeal the conviction or plea to a higher court.

The Appellate Division in New York

The Appellate Division handles all felony appeals. If an indictment charges both a felony and a misdemeanor then the misdemeanor contained within that indictment is also handled by the Appellate Division. The Appellate Division is broken up into four departments. The First Department is located in Manhattan; the Second Department is located in Brooklyn; the Third Department is located in Albany and the Fourth Department is located in Rochester.

Each of the departments of the Appellate Division has jurisdiction over specific counties within the state. For example, The Appellate Division, Second Department hears criminal appeals of people convicted in Queens County, Kings County (Brooklyn), and Nassau County, among others. The Appellate Division, First Department, hears criminal appeals of people convicted in New York County and Bronx County. Visit the New York State Criminal Court Website for a complete breakdown of which Appellate Division hears criminal appeals from which counties.

If a person is convicted of a felony, then the first thing to do is to determine what county the conviction occurred in. The appeal is then taken to the appropriate department of the appellate division that covers that county. So, for example, Manhattan (New York County) is located in the First Department. Therefore, any conviction of a felony in Manhattan (New York County) must be appealed to the Appellate Division, First Department.

Misdemeanor Appeals - Appellate Terms and County Courts

The appellate terms and certain county courts handle appeals of misdemeanors only. The First and Second Departments of the Appellate Division each have "appellate terms". The Appellate Term of the First Department covers the same geographic area as the Appellate Division, First Department, but only handles misdemeanors.

Likewise, the Appellate Term of the Second Department covers the same geographic area as the Appellate Division, Second Department, but only handles misdemeanors. If the defendant is convicted of a misdemeanor in a county which is located in the First Department of the Appellate Division, then the appeal is to the Appellate Term of the First Department. If the defendant is convicted of a misdemeanor in a county which is controlled by the Second Department of the Appellate Division, then the appeal is to the Appellate Term of the Second Department.

New York Court of Appeals

The highest appeals court in New York State for criminal appeals is the New York Court of Appeals. No other court can overturn its interpretation of New York law. Even the United States Supreme Court must rely on the New York Court of Appeals for interpretations of New York State law.

Everyone convicted in a trial court has an automatic right to file a direct appeal to an intermediate appellate court (like the Appellate Division, Second Department, for example).

If your appeal is rejected in any department of the Appellate Division, the Appellate Term or the County Court, you can ask the Court of Appeals for permission to appeal to that court. This request for permission to appeal is called a “leave application.” When someone asks permission to appeal to the Court of Appeals, they are said to be “seeking leave to appeal” to the Court of Appeals.

However, the New York Court of Appeals denies most requests for permission to appeal. For most people, then, the first appeal to an intermediate appellate court, is their one and only chance to litigate a direct appeal.

From New York State to the United States Supreme Court

If your leave application to the Court of Appeals is denied or if the leave application is granted but you then lose the appeal, then you can ask for permission to appeal to the United States Supreme Court.

As with the Court of Appeals, you must ask the United States Supreme Court for permission to appeal before you can file an appeal with that court. Such a request is referred to as a petition for a writ of certiorari. The U.S. Supreme Court, however, will take an appeal of a conviction from a state court only if there is a claim that the defendant’s federal constitutional rights were violated in some way. Permission to appeal to the U.S. Supreme Court is rarely granted.

NEW YORk criminal appeal process

Navigating through the New York State criminal appeals process can be confusing. Courts of the same level, for example, have different names depending on where they are located. In this article, New York criminal appeals lawyer Tom Theophilos explains the criminal appeals process in New York State from the trial level courts all the way through to New York’s highest court and up to the United State Supreme Court.

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.