FAQs - Your Appeal

Have questions? We have answers! 

Click through the catagories on the left for answers to some common questions.

If your question is not answered here, please contact us at (212) 693-0085. For individual attorney extensions, please refer to our staff page.

What is a criminal appeal?

An appeal is a review by a higher court of what happened in the lower or trial court.  Its purpose is to determine whether any serious legal errors occurred at your trial, hearings, plea, or sentencing, which would require reversal or modification of your conviction or sentence. Convictions in the Supreme Court of Kings, Queens and Richmond Counties are appealed to the Appellate Division, Second Department. Convictions in the Criminal Court in those counties are appealed to the Appellate Term, Second Department. In some cases, a further appeal can be taken to the New York Court of Appeals.

What will the appeals court consider in deciding my case?

An appeals court can consider only the evidence contained in the official record from the lower court, which is called the “Record on Appeal.” An appeal is not a new trial, and an appeals court cannot consider new evidence. The “Record on Appeal” consists of:
          1.  Minutes of all the important proceedings in the trial court, such as trials (including jury selection), pre-trial hearings, guilty pleas, and sentencing. We are not entitled to minutes of every adjournment or other court appearance in your case. However, if we believe there are additional minutes that are important for your appeal, we will obtain them. The record on appeal does not include grand jury minutes, and we are usually not able to obtain them because they are considered confidential.
          2.  Documents submitted to the lower court – such as written motions, decisions on motions, notes from the jury, the Probation Department’s pre-sentencing report, court-ordered psychiatric reports – are also part of the record on appeal. Police reports are not generally available to us unless they were exhibits at trial or are attached to other papers in the court file.
          3.  Physical Evidence admitted at trial or a hearing – such as photos of a line-up or crime scene – may also be considered on appeal.

How does an appeals court make its decision?

Each Appellate Division case  is decided by a panel of four, and in rare cases, five appellate judges. Appellate Term cases are also decided by a panel of 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 oral argument by the attorneys. Oral argument is not required. Your attorney will decide whether your case should be orally argued or submitted to the court for it to consider on the record and briefs alone. 

Will I be brought to court for my appeal?

No. Because the appeals court cannot take testimony or consider new evidence, your presence is not required. However, if you are at liberty, you are welcome to attend the oral argument. If you are incarcerated, you may wish to have a friend or relative attend. Simply ask your attorney to inform you of the date on which your case is scheduled.

What happens when my case is assigned to Appellate Advocates?

When Appellate Advocates receives the order of assignment in your case, we create a case file for you, send you this booklet, and begin the steps needed to make sure we get all the minutes and documents we need in order to brief your case. Receiving all the necessary minutes and documents usually takes several months. (If your case has been reassigned to us from another appellate attorney, this process may already be underway.) Once the record is substantially complete, your case is assigned to an individual Appellate Advocates attorney, who will prepare a brief on your behalf.

What should I do if I have questions or important information about my case?

While we are waiting for the record to become complete, your case will remain with our expert paralegal staff. During this period, any questions you have about your case should be directed to our Chief Paralegal, Ms. Irene Wojcicki. She will be able to answer most of your questions about the status of your case and the appeals process. She will usually keep inquiries about the legal issues in your case with your case file, so that they can be considered by the attorney who is eventually assigned to your case. 

The Chief Paralegal is in daily contact with Ms. Fahey and the other supervisors at Appellate Advocates and she will alert them to any issue or question that requires an attorney’s immediate attention.
As soon as we have the complete record in your case, one of our attorneys will be assigned to prepare a brief on your behalf. Within a few days of receiving your case file, your attorney will write to you. You will then have the chance to write to your individual attorney about any legal issues you wish the attorney to consider and anything else about your case that you think your attorney should know. From the time he or she is assigned to prepare your brief, your individual attorney will have direct responsibility for your case and you should correspond directly with that attorney.

Is there anything I should let Appellate Advocates know right away?

There are a few things that it is important for us to know without delay.  Please let us know immediately if:
  • your address changes;
  • you have been given a stay of your sentence pending appeal;
  • you have a life-threatening medical condition;
  • you have any transcripts in your case or you know your attorney does;
  • you either filed a 440 motion or received a decision on a 440 or other      motion after you were sentenced;
  • you have been resentenced or otherwise brought back to court on your    case after your original sentencing;
  • you have been arrested for or convicted of a crime, or charged with violating parole or probation, since your sentencing;
  • you have had any serious disciplinary action taken against you in jail or prison since your sentencing; or
  • there is any other matter in your case that might require urgent attention.

Can I call my attorney?

If you are at liberty or otherwise able to make regular pay phone calls, of course you may phone your attorney to discuss your case. If you are incarcerated and unable to make a pay phone call, but need to speak to your attorney, write a letter to your attorney explaining what you would like to speak about. Your attorney may authorize you to make one or more collect phone calls.
The expense of receiving unnecessary collect calls from clients is prohibitive, so your attorney may tell you that a call is not necessary in your case. You may rest assured that your attorney will keep you informed by mail of all important developments in your case.
You may also have a friend or relative phone your attorney, provided you have given us written permission to discuss your case with that person.

Can I have my attorney visit me?

Because an appeal is based solely on the written record from the lower court, appellate attorneys almost never need to visit clients in person. If you are at liberty, you may certainly make an appointment to visit your attorney.  However, we do not have the resources to visit clients who are incarcerated at a distance from New York City, unless such a visit is required by unusual circumstances in a particular case.


How long will my appeal take?

 How long your appeal will take depends on several things, including whether you went to trial or pled guilty, the length of your trial, and how quickly we are able to obtain all of the minutes and documents we need for your case. It is common for a trial case to take 18 to 24 months between assignment of counsel on appeal and the court’s decision. We will do everything we can to make sure your appeal is not delayed unnecessarily, but some things that can cause a delay are not within our control. 

Is there any danger my appeal will be dismissed because of delays?

 No. We will make sure that does not happen.

Can I get a video recording or transcript of the attorney’s argument?

The Appellate Division does not make recordings or transcripts of oral argument available. If you are interested in the argument, we suggest having a family member or friend attend. Otherwise, you can write to your attorney and ask how it went.
If your case goes to the Court of Appeals, however, the argument will be available as a webcast and a transcript of the argument will be available.

I am a friend or family member and would like to speak to my relative’s attorney.

Our attorneys are happy to speak to our client’s relatives and friends. But, we must first receive written authorization from the client that it is okay to do so.