The Law Offices of John Ferrara

What Actually Is A Criminal Appeal?


An appeal is an application to a court of greater authority to modify or vacate a proceeding before a lower court. The same definition applies to criminal cases, but limited to criminal cases.

Unpacking that definition, one makes a record of whatever happens at the trial courts. The stenographer records what the lawyers, witnesses’ judge and litigants say before the trial court which will become part of the record. Additionally, the documents the parties file and the exhibits accepted at the trial become part of the record.

The court of greater authority, the appellate court, will examine that record, and will also review the written and oral arguments of the lawyers. The goal is to decide if something done in the trial court requires either a dismissal of the charges, or a remand to the trial court. A remand means to return to the trial court for further proceedings, for the trial court to give a new trial, or to follow whatever direction the appellate court gives.

What Factors Constitute A Viable Appeal Case?

An appeal can be expensive, and you don’t want to spend money unless you have a reasonable chance of doing something positive for that investment. Further, a criminal appeal, in certain circumstances, can result in a more severe punishment than a case that was simply never appealed. If you apply the maxim of do no harm, the first thing you want to ask the lawyer who is representing you is are there any opportunities here, or are there any possibilities that I could successfully appeal this case and then increase my sentence.

A lawyer giving an opinion on whether a particular case is a good fit for an appeal needs to review the record. The lawyer needs to look at the transcript and all documents that have been filed. Then the lawyer needs to outline his or her thoughts, and review prior public cases and statutes, to see what ideas have support, or what ideas have precedents that the lawyer may be able to use to your advantage. The cases that are most likely to yield good results on an appeal are cases where the trial judge made many decisions. The more decisions a trial judge has made, the more likely a trial judge made an error. If one walks into court and pleads guilty, the trial judge has less chances of making an error which can be the source of a review on appeal. There will be less opportunity to make a mistake by the trial judge that the appellate court will consider significant enough to afford a remedy.

Beyond mere numbers of decisions by the trial courts, however, the answer to the question of which cases are most likely to yield a good result on appeal fall into two basic categories. First, if we can show the appellate court that there was or at least may be a miscarriage of justice, we are likely to get a positive result. No decent judge wants his or her fingerprints on a case where an innocent person is convicted.

The second broad category of cases that make for good appeals follow from recently announced rules from the higher authorities or the higher courts. There was a time when the Court of Appeals ruled that defendants have a fundamental right to attend bench conferences. ” (People v. Antommarchi, 80 N.Y.2d 247 [1992]). (Those are the conferences where the lawyers go up to the judge and whisper, and the jurors and the other persons in the courtroom don’t hear what’s going on, that explore the prospective jurors’ background and their ability to weigh the evidence objectively). Suddenly there were several cases where the trial court’s failure to invite the defendant to the bench for the discussion with prospective jurors became the focus of the appeal.

There was another time when the United States Supreme Court announced a rule that a non-citizen defendant had to be told that a guilty plea would make that defendant eligible for deportation. (Padilla v. Kentucky, 559 U.S. 356 [2010]). Again, there were several cases after Padilla where the failure to advise of these consequences became the focus of appeal.

Just by way of another example, there was a time when the Court of Appeals announced a rule that the trial court had to state, in the plea proceeding, that it would impose post-release supervision, which is almost like probation after one got out of prison. (People v. Louree, 8 N.Y.3d 541 [2007]). This new rule led to several successful appeals by defendants whose trial judge did not anticipate this change in the law.

The point here is the issues that are likely to prevail in appellate court fall into two categories.: Issues that follow from a new rule from a higher authority, and issues pertaining to substantial justice. These issues require a careful study of an individual record by an attorney. You want an experienced attorney to analyze your record and review the applicable law so that you can make an informed decision as to whether or not there is a reasonable chance to win on the appeal, and whether or not there is risk that the appeal will result in something worse than the order one wishes to appeal.

For more information on Criminal Appeals In New York, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (845) 794-1303 today.

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