What Is The Appeals Process?

The appeal process begins when the Appellate Division, Second Department, assigns Appellate Advocates to represent an indigent defendant on appeal from a conviction in Brooklyn, Queens or Staten Island.  Our paralegal staff, under the guidance of our Attorney-in-Charge, compiles the "record on appeal" and responds to our clients' questions and concerns while the record is being prepared.

Once we determine that we have the complete record, a copy of the minutes is sent to our client free of charge and the case is assigned to an individual attorney within our office. That attorney reads the entire record and identifies possible issues for appeal. The attorney also writes to the client, giving him or her a chance to suggest issues and ask questions. When all potential issues are identified, the attorney researches them thoroughly, eliminates those that are not viable, and assesses the relative strengths and weaknesses of the viable issues in order to select those that will make for the strongest overall brief on the client's behalf. Each brief goes through a rigorous editing process with one of our supervisors.

After the brief is completed, we file it and send our client a copy. We eventually receive a responding brief filed by the District Attorney's office, which we also send to our client. If the District Attorney's brief makes some argument that we have not already addressed in our brief, we may file a reply brief, which is also sent to the client.

Each appeal is decided by a panel of four or five appellate judges. In deciding a case, the judges consider the record from the lower court, the briefs setting forth the legal arguments for each side, and any oral argument by the attorneys. Oral argument is not required. The attorney decides whether the appeal should be orally argued or submitted to the court for its consideration on the record and briefs alone.

When an attorney orally argues a case, he or she appears in person before the judges who are assigned to decide the case. The Assistant District Attorney who wrote the opposing brief also appears. Each side usually gets between 5 and 15 minutes to present its arguments and answer any questions the judges may have. Each attorney tries to highlight the strongest arguments and most helpful facts for his or her side of the case.

An incarcerated client is not brought to court for oral argument since the appeals court cannot take testimony or consider new evidence, but friends or relatives of the client may attend the oral argument.

When a case is submitted, the attorneys do not appear in court. Instead, the case is decided on the basis of the briefs and the record. Our attorneys carefully consider whether oral argument or submission is best in each individual case.

If an appeal is successful, we take care of whatever paperwork and arrangements are necessary. If it is unsuccessful, we file a "leave application," asking the Court of Appeals, which is the highest court in New York State, to take the case. If it agrees to do so, it will assign us to represent the client before the Court of Appeals, and we will brief and argue the case in that Court.