After Criminal Conviction in New York - What are Your Options on Appeal?
by: Tom Theophilos, Esq., New York State Criminal Appeals Attorney
New York Post Conviction Options - Varieties of Hope.
Whenever there are trials, there is a possibility of conviction, no matter the quality of the cases. Unfortunately, truth and justice do not always win out in the end at criminal trials. Therefore, there will be times when a person accused of a crime he did not commit will listen in horror as the jury declares him guilty. There will be times when convictions are caused by unjust legal rulings.
Although the situation is certainly grim, and although the convicted person may be forced to begin serving a jail sentence, there is yet still hope.
There are four general types of post conviction litigation available for people convicted of a crime in New York State courts. They are the direct appeal, CPL 440 motion, Error Coram Nobis petition and federal habeas petition. The direct appeal is the primary form of post conviction litigation. All other forms of post conviction litigation mentioned above are referred to as collateral post conviction litigation. All of these different types of litigation as well as post conviction options available for those convicted in federal court are briefly described below.
Direct Appeal of a Criminal Conviction in New York STATE criminaL court
The direct appeal is the type of appeal that most people are familiar with. It is the appeal taken by a defendant immediately after conviction to an appellate court (i.e. a higher court). This type of appeal seeks to reverse a conviction based on errors made during the trial or a plea that are clear from the record (i.e. errors that appear in the transcript of the proceedings in the court below). The defendant has an automatic right to take a direct appeal from a conviction in a New York State trial court but only if he serves and files a notice of appeal within 30 days of the date of sentence.
The NEW YORK CPL 440 Motion
A CPL 440 motion seeks to reverse a defendant’s conviction based on facts that are off the record (i.e. facts or issues that do not appear in the transcripts of the proceedings in the trial level court). Such motions can be made before or after the direct appeal has been submitted to the appellate court. However, the 440 motion is not filed with an appellate court. It is filed with the judge in the trial court who presided over the defendant’s trial or plea. No notice of appeal needs to be filed to preserve a defendant’s right to file a CPL 440 motion in the trial court.
More detailed information about 440 Motions after conviction in New York State Criminal Courts.
pETITION FOR A Writ of Error Coram Nobis
A petition for a writ of error Coram Nobis is filed by way of motion submitted directly to an appellate court. Such a motion may only be filed if a direct appeal has first been submitted to an appellate court and only after that appellate court has rendered a decision on that appeal. The petition seeks permission to file a second direct appeal on the grounds that the lawyer representing the defendant on the first direct appeal failed to include a meritorious argument in that initial appeal. In short, the Error Coram Nobis petition asks the court for a second chance to do a direct appeal on the grounds that the lawyer who handled the first appeal made a mistake.
PETITION FOR A WRIT OF HABEAS CORPUS FILED AFTER CONVICTION IN A STATE COURT
A defendant convicted in state court may file a petition for a writ of habeas corpus in a trial level federal court which is referred to as a Federal District Court. Since such a petition may only be filed in federal court, it may only request reversal of a defendant’s conviction on the grounds that his federal rights (usually his federal constitutional rights) have been violated by a state court. Such a petition is usually filed after a defendant has completed his direct appeal in state court.
Federal Direct Appeals
Like a direct appeal in state court, a direct appeal in federal court is taken directly after a defendant is convicted in a federal trial level court (i.e. Federal District Court). The notice of appeal must be filed very shortly after one is sentenced in Federal District Court in order to preserve his right to take a direct appeal. Furthermore, unlike in a New York state court, where a defendant is permitted to wait many months and sometimes even years before proceeding with his direct appeal, the same is not true for federal convictions. When a person is convicted of a crime in Federal District Court, the federal appellate court will set down a scheduling order directing that a defendant file his brief on appeal very quickly after the date of his sentence.
PETITION FOR WRIT OF HABEAS CORPUS FILED AFTER CONVICTION IN FEDERAL COURT
As stated above, a petition for a writ of habeas corpus may be filed after conviction in a state court. But such a petition can also be filed after someone is convicted in federal court. Such petitions filed after conviction in a federal court usually seek to litigate matters that are off the record. As such they perform a function similar to that performed by a CPL 440 motion filed in state court. No notice of appeal needs to be filed in order to preserve one’s right to file a federal habeas petition. However, there is a very short statute of limitations within which such petitions must be filed both with respect to one convicted in federal court and with respect to a person convicted in state court.
If you have any questions about the appeals of criminal convictions in New York State, please do not hesitate to call me at 716-447-7899 or 716-447-7901.
Challenging a Criminal Conviction in New York
Once the terrible reality of conviction has set in, attention shifts to the possibilities for undoing what has been done. Although most people are aware of the right to appeal a conviction, there are several different types of appeals available. It is important to understand the different post conviction options permitted by law and to review those options with a criminal appeals lawyer as soon as possible.
In this article, New York criminal appeals lawyer Tom Theophilos discusses the various ways in which convictions in New York state and federal criminal courts can be challenged.
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