Since the founding of the Appeals Bureau of the Legal Aid Society of Suffolk County, its attorneys have distinguished themselves in the community of criminal appellate practitioners. This reputation is well-deserved as the attorneys of the Appeals Bureau have successfully argued many high profile cases before the Appellate Term, Appellate Division and the court of highest jurisdiction in the State of New York, the Court of Appeals. Many of the victories achieved by the Appeals Bureau have significantly influenced criminal jurisprudence in the State of New York.
The present staff consists of many attorneys experienced in criminal law who are responsible for writing the appeals of indigent defendants convicted of serious felonies, misdemeanors and violations of the Penal Law as well as the Vehicle and Traffic Law of the State of New York. In the legal context, an indigent person refers to an individual who is financially unable to afford his own attorney.
The objective of Legal Aid Society's Appeals Bureau is to insure that every person charged with a criminal offense receives the right to due process guaranteed by the Constitution of the United States and New York. Due process can best be defined as a system of rules and principals that have been instituted to protect an individual's rights. During its long history, it has been the unwavering position of the Appeals Bureau that due process should never be abridged, as this right is the cornerstone of the American Criminal Justice System.
What is a Criminal Appeal
In general, a criminal appeal is the means by which a person seeks review in an appellate court of conviction(s) or adverse ruling(s) obtained against him in a lower court. The appellate court's responsibility is to review the record to determine if errors occurred in the lower court, which would require that the conviction(s) or ruling be reversed or modified.
In New York State, there are three courts of appellate jurisdiction in which a criminal conviction or ruling can be reviewed. They are the Appellate Term, the Appellate Division and the Court of Appeals. One can appeal a case to the Appellate Term of Appellate Division as a matter of right. Appeal as a matter of right means that these two appellate courts must hear the appeal. However, this is not so with the Court of Appeals which has the discretion as to whether or not it will here an appeal.
Determining Eligibility for Representation by the Appeals Bureau
Before the Legal Aid Society is permitted to represent an individual on appeal, it is necessary that the appellate court appoint the Legal Aid Society as the person's appellate attorney. This is accomplished by making what is referred to as a poor person's application to the appellate court. If the appellate court finds the individual to be a "poor person", the Appeals Bureau of the Legal Aid Society will be assigned to write the appellate brief and the person is now a client of Legal Aid Society. The appellate brief is a written argument filed with a appellate court stating the facts of the case and why the trial court acted improperly. In the event there is a conflict of interest which prevents the Legal Aid Society from representing the person, an attorney from the assigned counsel plan will be assigned to the case.
Process After Eligibility for Legal Aid Representation has Been Determined
After the Appeals Bureau has been assigned to represent the person on appeal, the client will be notified by the appellate court of the appointment of the Legal Aid Society. The Legal Aid Society will also notify the client by letter that the Appeals Bureau has been assigned as appellate counsel. Enclosed in the letter will be questionnaire requesting information that will assist in the preparation of the appeal.
When the client was convicted of offenses after having gone to trial or was convicted after having accepted a plea bargained agreement, the transcripts will be ordered from the court stenographer that transcribed the proceedings. As a Legal Aid client, the transcripts are provided without charge. Unfortunately, the waiting period to receive the transcript can be a lengthy one. The stenographer that transcribed the transcript may have received requests for transcripts from other individuals prior to having received the request for the client's transcript.
Receipt of the Client's Trial Transcript
When the transcript of the client's court proceedings is received by the Appeals Bureau, the case will be assigned to an attorney who will be responsible for writing the appellate brief. The client will be notified of the name of the attorney. If the client has any questions concerning the appeal or if he wants to make the attorney aware of issues that he believes are important to having the conviction(s) reversed, he is encouraged to contact the attorney. The attorney assigned to the case will promptly answer all correspondence.
However, the receipt of the client's trial transcript does not mean that the attorney assigned to the case will immediately begin the appeal. The attorney has been assigned many cases that are older than the client’s and is responsible to complete these appeals prior to beginning the client's.
The client should be aware that when the Legal Aid Society has been assigned as his appellate representative, the trial transcript will not be sent to the client but to the Legal Aid Society. The Legal Aid Society does not have the resources to make copies of the trial transcript. However the client may designate a person to take possession of the trial transcript for the purpose of making photocopies. After the photocopies are made, the transcript must be returned to the Legal Aid Society. The client should designated a responsible person to take possession of the transcript, for if the transcript is lost or damaged, if will delay the submission of the appellate brief.
Writing the Client’s Appellate Brief
The attorney will notify the client when he begins reading the transcript in preparation of writing the appellate brief. The reading of the transcript is the means by which the attorney will be able to ascertain if errors occurred during the client’s trial or if the client chose to plead guilty pursuant to a plea bargain, the plea. Examples of some of the errors the attorney would attempt to find are: evidentiary mistakes made by the judge, errors during the jury selection process or improper conduct by the prosecution. In the appellate brief, the attorney will argue that these errors denied the client a fair trial which requires that the conviction(s) be reversed by the appellate court. If the client chose to waive his right to a trial and instead, entered a plea of guilty to an offense, the attorney will review the plea and sentencing transcript in order to determine whether the judge followed the procedures required when accepting the client’s guilty plea, whether the client was properly sentenced and whether the client received adequate legal representation.
Generally, the client should be aware that the attorney is only permitted to argue issues that appear in the trial transcript or the plea and sentencing transcript. The attorney cannot raise as issues in the appellate brief anything that does not appear in the record of the proceedings. Nevertheless, Criminal Procedure Law Section 440.10 sets forth the grounds on which a motion can be made to vacate a conviction(s) on grounds outside the record. A ground frequently raised in a CPL 440.10 Motion to vacate a conviction(s) would be the discovery of new evidence not available at the time of the guilty verdict. Other grounds to vacate a conviction are also set forth in this section.
Submission of the Appellate Brief to the Appellate Court
When the appellate brief has been completed, the client will be sent a copy for review and comments prior to the brief being submitted to the appellate court. Any comments and suggestions the client makes will be given consideration by the attorney. However, the final decision as to what the brief will include remains in the discretion of the attorney. The appellate brief submitted on the client’s behalf is referred to as the Appellant’s Brief and will be submitted to the appropriate appellate court.
A copy of the Appellant’s Brief will also be served on the District Attorney’s Office. The District Attorney’s Office will submit a response. The brief that the District Attorney’s Office submits to the appellate court in response is referred to as the Respondent’s Brief. A copy of the Response Brief will be mailed to the client.
If the client feels strongly about an issue that was not argued by the attorney in the appellate brief submitted on the client’s behalf, the Appellate Division provides the means by which the client may do so. The client may submit to the Appellate Division what is referred to as a pro-se supplemental brief. However, prior to submitting a pro-se supplemental brief, the client must first obtain the permission of the Appellate Division.
Decision by the Appellate Court
After the appellate court has received both the Appellant’s Brief and the Respondent’s Brief, the case is placed on the appellate court’s calendar for oral argument. Subsequent to this date, the appellate court will render a written decision on the appeal. The appellate court’s decision will either affirm (confirm) the lower court’s verdict or adverse ruling against the client or the court could issue a decision in the client’s favor where it reverses or modifies the conviction or adverse ruling by the lower court. The Legal Aid Society will notify the client of the appellate court’s decision and the court’s written decision will be sent to the client.
If the appellate court affirms the client’s conviction(s) or adverse ruling by the lower court, the conviction or ruling remains in effect. However, if the appellate court reverses the conviction or adverse ruling, the case is remanded (returned) to the lower court for action as directed by the Court.
Relief if Appellate Term or Appellate Division Affirms Lower Court’s Decision
If the Appellate Term or Appellate Division has affirmed or modified the conviction or adverse ruling made in the lower court, the Appeals Bureau will make an application on the client’s behalf requesting that the Court of Appeals hear the appeal. As stated, the Appellate Term and the Appellate Division must hear the appeal. To the contrary, the Court of Appeals has the discretion as to whether or not it will hear an appeal. In only a very small percentage of cases will such a request be granted by the Court of Appeals.
If the Court of Appeals denies the application for leave to appeal, the client has exhausted his appellate remedies in the courts of the State of New York. With direct appeals, some cases involving issues of federal law may warrant an application for a writ of certiorari to the US Supreme Court which, like the NY Court of Appeals has discretionary jurisdiction. Similarly, with post-conviction motions filed pursuant to NY CPL § 440, the client may petition the U.S. District Court for the Eastern District of New York for a writ of habeas corpus if the claim involves issues of federal law.
The attorneys of the Appeals Bureau of the Legal Aid Society of Suffolk County will constantly strive to provide its clients with the highest quality appellate representation. To this end, clients will always be apprised of the status of their appeal, all correspondence from the client will receive a prompt response, all suggestions from the client concerning his appeal will receive consideration and the most persuasive argument for convincing the appellate court to reverse or modify the client’s conviction(s) will be raised in the appellate brief .