Examples of Successful New York Criminal Appeal Cases Handled by Tom Theophilos

A proven record of success

Mr. Theophilos has handled a wide variety of appeals and post conviction motions. He has handled numerous appeals of murder cases and major drug cases in both New York State and Federal Courts.

U.S. v. Klyde Glenn (Murder in Furtherance of a Drug Conspiracy - Conviction Reversed)

Mr. Theophilos drafted the brief and appeared for oral arguments before the U.S. Court of Appeals in the case of U.S. v. Klyde Glenn (312 F. 3d 58).

The defendant in this case was convicted after trial of committing murder in furtherance of a drug conspiracy and was sentenced to life in prison. Mr. Theophilos persuaded the Court that there was insufficient evidence to establish that his client had committed homicide. As a result, the conviction was reversed and the defendant’s life sentence was vacated.

Reversals on the grounds of insufficient evidence are extremely rare for any category of criminal case and are even more unusual for murder cases.

People v. Martin (Murder Conviction Reversed)

Mr. Theophilos prevailed on a petition for a writ of error coram nobis in a New York state murder case (People v. Leon Martin, 17 A.D. 3d 1172). A favorable ruling on a writ of error coram nobis permits a defendant to re-file an appeal. It is extremely rare for such writs to be granted in any category of criminal case, and even more unusual for them to be granted in favor of defendants convicted of murder.

After the writ was granted, Mr. Theophilos submitted a brief to and argued the case before the appellate division. That court then reversed the murder conviction. People v. Martin, 26 A.D. 3d 847.

The prosecutor appealed that decision to the New York State Court of Appeals, New York's highest court. Mr. Theophilos won the case in the New York Court of Appeals. See, People v. Martin, 8 N.Y. 3d 129.

People v. Buchanan (Murder Conviction Reversed by the New York Court of Appeals)

In the case of People v. Buchanan, 13 N.Y. 3d 1, the defendant was convicted of the murder of a 14-year-old girl. The case was appealed to the Appellate Division which affirmed the conviction.

Mr. Theophilos then stepped in as newly retained counsel and appealed the case further to the New York Court of Appeals.

Mr. Theophilos drafted the brief and argued the case before New York’s highest court. He argued that the trial judge violated the law by requiring the defendant to wear an electric stun belt during the course of the trial.

Mr. Theophilos argued that requiring anyone to wear such a belt may cause psychological stress that interferes with a defendant’s ability to concentrate on his trial and assist in his own defense. After a vigorous oral argument and intense questioning from the bench, Mr. Theophilos convinced the court that requiring the defendant to wear the belt violated his constitutional rights to a fair trial and due process of law.

The court then reversed the conviction.

People v. Ott (Murder conviction reversed)

In the case of People v. Ott, 165 A.D. 3d 1601, Tom received a reversal of yet another murder conviction. Furthermore, as he had done in People v. Martin discussed above, Tom first filed a petition for a writ of error coram nobis which was granted. Thereafter, Tom submitted a brief to the Appellate Division and then argued the case before that court which thereafter reversed the conviction.

Federal Sentencing Reversals

Mr. Theophilos handled the appeal of a defendant who pled guilty to selling cocaine and received a sentence of life in prison without the possibility of parole. The defendant in that case did not challenge the fact that he committed the offense but simply wanted the life sentence eliminated. Mr. Theophilos took the case and appealed it to the United States Second Circuit Court of Appeals and was successful in getting the sentence of life in prison reversed (U.S. v. Jimmy Glen, 418 F. 3d 181).

Mr. Theophilos also won reversals in three other federal sentencing cases.

• U.S. v. Rodriguez, 260 Fed. Appx. 414

• U.S. v. Kaid, 241 Fed. Appx. 747

• U.S. v. Berrios, 279 Fed. Appx. 82

People v. Albanna (Assault in the First Degree - Conviction Reversed)

Mr. Theophilos obtained a reversal of a conviction for Assault in the First Degree in the case of People v. Albanna, 23 A.D. 3d 1004. In this case, Mr. Theophilos argued that the trial judge made a mistake in the instructions that were given to the jury at the end of the trial. The Appellate Division agreed and reversed the defendant’s assault conviction.

People V. Titus (Reversal and Dismissal of Assault Charges)

In People v. Titus, 95 A.D. 3d 1042, Tom was retained to handle the appeal of a man convicted of assault. On appeal Tom argued that the conviction should be reversed on the grounds that the defendant’s speedy trial rights had been violated. Tom’s efforts on behalf of his client were successful and the appellate division reversed his client’s conviction. Because the reversal was based on the defendant’s speedy trial rights, the case, in addition to being reversed, was also dismissed.

Tom received a reversal in the case of People v. Peloso, 176 A.D. 3d 1107. In that case, the grand jury handed down an indictment charging 17 felony counts. The defendant was convicted of all counts and was sentenced to 12 years in prison. The most serious count in the indictment charged the defendant with attempted aggravated assault on a police officer as a class C violent felony. The conviction on that count carried a mandatory minimum seven-year prison term.

In this case, the client contacted Tom soon after he was convicted but prior to sentence. Tom immediately got to work on the case. Before the defendant was sentenced, Tom filed a Clayton motion and then he filed a motion pursuant to CPL 330.30. Well before the defendant was sentenced, Tom got to work on a 440 motion which he planned on filing after the defendant was sentenced. Then, after the defendant was sentenced, Tom filed the 440 motion. All of these motions were submitted to the trial judge as is required by the criminal procedure law. Such motions are routinely denied in the trial courts and, in fact, the trial judge in this case denied all the motions. However, those motions then became the predicate for the appeal.

In this case, Tom filed a direct appeal which subsumed the Clayton motion and the 330 motion. Tom also submitted a leave application to the appellate division requesting permission to appeal the denial of the 440 motion. That leave application was granted and Tom thereafter consolidated the direct appeal with the appeal of the 440 motion. By pursuing this strategy, Tom now had all the issues that he had presented to the trial court put forward to the appellate court. While the defendant’s appeal was pending, Tom made a bail application directly to the Appellate Division which was granted resulting in the defendant’s release from prison pending the final determination of the appeal. Tom submitted his brief on both appeals and argue the cases in the Second Department in Brooklyn.

As a result of Tom’s efforts, the court dismissed the top count of the indictment on the grounds that the conviction for that count was against the weight of the evidence. That top count carried the mandatory seven-year minimum jail term. The court also dismissed several other counts on the same grounds. The dismissal of any count based on the Appellate Division’s weight of the evidence jurisdiction precludes the prosecutor from retrying the defendant on that count. Furthermore, such a dismissal cannot be appealed by the prosecutor to the Court of Appeals. The court then dismissed several other counts on the grounds of legal insufficiency of the evidence. Such a dismissal likewise precludes the prosecutor from retrying the defendant on those counts.

By the time the appeal was over, only two felony counts remained on the indictment and they were both low-grade felonies for which the defendant could receive as little as one day in prison. Furthermore, the conviction for those two remaining counts was reversed.

SEX CRIMES REVERSALS

In People v. K.S., 2010 WL 2471157, Tom handled the appeal of a healthcare provider accused of sexually abusing a patient. In that case, Tom argued that the prosecutor failed to turn over to defense counsel information that could have impaired the credibility of the complaining witness. The appellate court agreed and reversed the conviction.

In the case of People v. T.J., 19 A.D. 3d 1486, the defendant was convicted of the crime of “course of sexual conduct against a child.” After the trial, Tom learned that at least two of the jurors had offered the equivalent of expert opinion testimony during the course of deliberations. Tom appealed the case and argued to the appellate court that the conviction should be reversed because expert opinion statements constitute evidence which must first be presented in the courtroom during the trial so that the defendant’s lawyer can cross-examine the individual holding himself out to be an expert. After Tom argued this point, the Appellate Division reversed the conviction. This case was especially significant because it is rare for an appellate court to consider statements made by jurors during deliberations as a basis for reversing a conviction.

In People v. Kluge, 180 A.D. 3d 705, the defendant was convicted of rape, criminal sexual act in the first degree and burglary. In this case, the complainant testified that the defendant approached her while she was in her garage and then punched her in the head. She further testified that the defendant then closed the garage door and raped and sodomized her. Forensics experts retained by the prosecutor testified at trial that the defendant’s DNA was found on the victim. Furthermore, the victim identified the defendant in a lineup. Upon conviction, the judge sentenced the defendant to 50 years in prison. Thereafter, the defendant retained Tom to handle the appeal. Tom submitted a brief to the appellate division and then argued the appeal before the Second Department in New York City. On appeal, Tom argued that certain jurors were chosen who made statements at voir dire bringing into question their ability to be fair and that the defendant was improperly excluded from a bench conference. As a result of Tom’s efforts, the Appellate Division reversed the defendant’s conviction.

Wide Variety of Appeals and Creative Arguments

Mr. Theophilos received a reversal of a felony drug sale in the case of People v. Ciccarelli, 32 A.D. 3d 1175.

In the case of People v. Hibbard, 27 A.D. 3d 1196, Mr. Theophilos won a reversal of the defendant’s sentence on the ground that the trial judge had violated his client’s First Amendment rights to freedom of speech.

In People v. Charles, 67 A.D. 3d 698, Mr. Theophilos argued that the trial judge misinterpreted the law when sentencing the defendant. The appellate court agreed and reversed the defendant’s sentence.

A Relentless Pursuit of Justice in new york criminal appeals

Criminal appeals lawyer Tom Theophilos limits his practice exclusively to criminal appellate and post conviction litigation.

Tom’s many years of experience as a criminal appeals lawyer and his single-minded and persistent devotion to each and every case that he works on has enabled him to secure numerous reversals for his clients.

Tom will bring his legal experience and exacting standards of quality work to help you achieve justice in your case.

If you have any questions about a criminal appeal or other type of post-conviction litigation then call Tom now for your free consultation at 716-447-7899 or 716-447-7901.