Direct Appeal of a Criminal Conviction in New York
When a person is convicted of a crime in New York, he has a right to a direct appeal. If the defendant is convicted of a misdemeanor in village, town or justice court, the appeal is taken to county court. If a defendant is convicted of a felony in supreme or county court, the appeal is taken to the department of appellate division.
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 within 30 days of the sentencing date. The criminal appeal must then be perfected within 90 days from the date of filing the notice of appeal by submitting an appellate brief along with the trial transcript to the appellate court. If it is not the defendant may lose his right to appeal his case. Direct appeals are also available in the 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 admitted into evidence or argued in the trial court. For example, if a trial lawyer objected to the admission 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.
440 Motion
If a defendant is convicted in a New York state court and wants to seek reversal of a conviction based on evidence that is not on the record he must file a motion under the rules of New York Criminal Procedure Law Section 440. The 440 motion is made to the trial court, not to an appellate court and informs the trial court of facts not contained in the trial record.
The 440 motion can be made if: 1) the trial court lacked jurisdiction; 2) the judge or prosecutor used fraud, false statements or undue pressure to obtain your conviction; 3) the prosecutor admitted evidence at trial he/she knew to be false; 4) evidence obtained in violation of your constitutional rights was admitted at trial; 5) you could not understand or participate in trial because of a mental condition; 6) the record failed to include some improper conduct at trial such as the failure to produce exculpatory evidence; 7) new evidence has been found that would effect the outcome your case that could not have been discovered before; 8). you were convicted in violation of your constitutional rights.
New York Court of Appeals
The highest appeals court in New York State for criminal appeals is the New York Court of Appeals. If your appeal is rejected in by the county court, or the department of appellate division, you can ask the Court of Appeals for permission to appeal one last time.
Contact a Knowledgeable Rochester New York Appeals Attorney
If you or a loved one has been convicted of a crime and are in need of a criminal defense appellate lawyer in the Greater Rochester Area of New York, contact the Law Office of Emanuel N. Mouganis today.
