Legal Rights When Filing a New York Criminal Appeal

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

Right to be Present at Oral Argument on Appeal

Once a person is convicted of a crime in New York State, he no longer has the same rights that he enjoyed in the trial court. For example, a person accused of a crime has a Constitutional right to be present during his trial. Once convicted of a crime, however, and for purposes of the appeal, the defendant does not have the right to be present during the oral arguments on the appeal held at the appeals court.

As a practical matter, this means that the Government is not obligated to produce a person who is in prison at the Appellate Court for the oral argument. If the person who is appealing the case happens to be at liberty, of course, he may attend the oral argument.

Right to Counsel for Criminal Appeal

The right to counsel is likewise different for an appeal. At trial, for example, a person has the right to represent himself. On appeal, however, the Court has the power to appoint an attorney to argue a case on behalf of the convicted person, regardless of the person's wishes.

The right to have a public defender does exist for purposes of a direct appeal. Upon proof of inability to afford a criminal appeals lawyer, the appellate court will appoint an attorney. The process of having a lawyer appointed for an appeal is slightly more involved than the process of having a trial level attorney appointed, but each person convicted of a crime has the right to the assistance of counsel on appeal.

In order to obtain a public defender for a criminal appeal, the convicted person must specifically ask the appeals court to assign a public defender to the case. Alternatively, if the person who is convicted believes he will not be able to afford a private criminal appeals lawyer, he should ask his trial lawyer what to do in order to receive a court appointed attorney to handle his appeal.

It is worth noting that the right to a public defender for a direct appeal does not necessarily exist for other types of post-conviction remedies. It is possible for someone to have a perfectly valid argument for some other type of post conviction relief and yet not have a right to use a court appointed lawyer to make that argument. A person in such a situation will either need to find a lawyer willing to accept the case for free or for a limited fee, or undertake the process of making the argument himself.

Right to Change Appeals Attorney

At the trial level, issues sometimes arise between the public defender and the client that result in the client seeking the appointment of a new public defender. Within reason, trial level courts will occasionally appoint different counsel.

Do not count on being able to obtain different appointed appeals counsel. Such requests to change appointed appeals attorneys are rarely granted.

In fact, once the court has appointed an appellate attorney, the court must grant permission even for a privately retained attorney to take over the case. While the Court is unlikely to turn down a request by a private attorney to take over the case from a public defender, permission must still be requested and granted before the private appeals attorney may take the case.

Scheduling Orders

Many appellate courts will set scheduling orders directing that a brief be submitted by a specific date. The brief is the written document that contains all of the legal arguments for the appeal.

Once an appellate attorney receives such a scheduling order, he must comply with it. Once a scheduling order has been issued by an appellate court, it may be difficult to change lawyers. There may not be enough time remaining in the scheduling order to both get permission from the court to switch lawyers and also permit the new lawyer to draft his own brief. In the trial courts, deadlines for those accused of crimes are often flexible. Trial level judges frequently use their broad discretion to permit delays for any number of reasons. The appeals courts may not be as forgiving of deadlines.

When Someone Else Hires the Appeals Lawyer

Often times the person paying the legal fee for the appeal is different than the person who was convicted and is appealing the case. If the payer, after signing the retainer agreement, wants the lawyer removed from the case but the defendant wants the lawyer to stay on the case then the lawyer is obliged to comply with the desires of the defendant.

It must be remembered that the lawyer’s primary obligations are to the client, who is the person appealing the case, even if someone else has paid the lawyer's fees.

Contingency Fees in Criminal Appeals

Contingency fee arrangements, where a fee is owed only if the lawyer wins the case, are prohibited by the New York code of ethics in all criminal cases, including criminal appeals.

Your Legal Rights on Appeal in New York

A defendant has a variety of rights when he files a direct appeal in a criminal case in New York, but the precise nature of those rights are different from what exists at the trial level in criminal cases. In this article, New York Criminal appellate attorney Tom Theophilos discusses some of those differences including issues related to the right to counsel on appeal. 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.