APPEALS

Appeals in criminal cases typically occur after a defendant has been convicted at trial.  The government cannot appeal a not guilty verdict because of double jeopardy principals, which protect defendants from being prosecuted twice for the same crime.  The prosecution may be able to appeal a court's procedural or evidentiary rulings while a case is still pending, but this happens infrequently.  Most post judgment appeals occur after a defendant is convicted at trial.  This is because a defendant usually is required to waive his appellate rights before he is allowed to plead guilty as part of any negotiated plea bargain.  In addition, the complex nature of criminal trials increases the likelihood that that the court, the prosecutor, or the defense attorney will commit errors that might form the basis of a successful appeal.

A defendant convicted of a criminal offense generally has  right to one appeal to an intermediate appellate court, such as the Appellate Division of the Supreme Court of the State of New York, for state criminal cases, or the United States Court of Appeals for federal criminal cases.  If an appeal is unsuccessful at the intermediate appellate level, a defendant convicted in state court must apply for leave to appeal to the New York State Court of Appeals, the highest court in New York State.  Those convicted in federal court must apply for a writ of certiorari in order to appeal their case to the United State Supreme Court.  Only a very small percentage of applications to appeal to these high courts are ever granted. 

Appeals often do not directly concern a defendant's guilt or innocence of the underlying crime with which they were convicted, but instead deal with whether the defendant's rights were protected at the trial court level.  For example, a defendant may succeed on appeal when the record demonstrates that he did not receive a fair trial due to improper conduct by the prosecutor, improper evidentiary rulings by the trial judge or ineffective assistance of counsel by the defendant's attorney.  Likewise, a successful appeal is not the same as a "not guilty" verdict.  However, it will often mean that a defendant will be afforded a new trial for the purpose of correcting any errors that occurred in the earlier trial. 

While persons convicted of criminal offenses are given one appeal as of right, the right to appeal must be preserved by filing a notice of appeal within thirty (30) days of sentencing.  If you or a loved one has recently been convicted of a crime it is essential that you contact a qualified appellate lawyer to assure that your right to appeal is protected.  The attorneys at Raiser & Kenniff handle criminal appeals in both state and federal courts.  Contact us today for a free appellate consultation.