FAQs - From Briefing to Decision

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.

After my brief is filed, what happens next?

When your attorney files your brief, he or she also provides copies to the District Attorney's office. An individual Assistant District Attorney will be assigned to the case, and will write a brief in opposition to ours. He or she will file it with the Court and give us copies, and your attorney will send a copy to you.
Although it is permissible to write reply briefs, it is only necessary in some cases. In our experience, it is best to anticipate the arguments the District Attorney is likely to make, and address those issues head-on in our main brief.  However, if your attorney thinks yours is a case in which a reply brief is called for, he or she will file one and send you a copy.
Once the appellate court has received all the briefs, it will place the case on an argument or submission calendar.

What is the difference between argument and submission?

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.
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. Your attorney will carefully consider whether oral argument or submission is best in your case.
The court requires that time for oral argument be requested on the cover of the brief. Because this must be done before your attorney sees the District Attorney’s brief, many attorneys will request argument time even if they think the case should probably be submitted.  Once they receive the District Attorney’s brief, they make a final decision as to whether to argue or submit the case.
When the only issue raised concerns the legality or excessiveness of the sentence, the Appellate Division, Second Department, does not permit oral argument. In other cases with short records or relatively simple issues, the Court may also decide not to permit oral argument, even if the attorney has requested it.

How will I get the court's decision?

The Court will send us a copy of its order deciding your appeal. An order can affirm a judgment, modify it, or reverse it. If the only issue was excessiveness of sentence, the order will probably not be accompanied by a written opinion explaining the Court's reasoning. However, in all other cases, the appellate court usually issues an opinion in which it explains why it decided your appeal as it did.

Your attorney will send you a copy of the order and opinion as soon as we receive them from the Court. Decisions are also printed in the New York Law Journal.

If I win, what happens next?

This depends on the relief the Court grants in your case. The most common forms of relief are a new trial, a dismissal, or a sentence reduction.
If you are given a new trial, your attorney will do all the paperwork needed to get you back to court and arrange to have a trial attorney represent you.
If the Court dismisses the charges against you completely, so that the People cannot try you again, your attorney will do everything necessary to secure your release and correct your records.
If the Court reduces your sentence, your attorney will make certain the prison or parole authorities are notified to correct your records.
If the Court grants some other type of relief, your attorney will explain for you exactly what will happen.

What happens if I lose?

If the Appellate Division or Appellate Term affirms your conviction, you have the right to request that the New York Court of Appeals consider your case. This is called making a “leave application.”
The Court of Appeals has much more limited jurisdiction that the Appellate Division or Appellate Term. It can consider only “questions of law,” which generally means issues preserved by your trial attorney’s objection, request, or motion. It does not have “interest of justice” jurisdiction. Therefore, it cannot consider excessive sentence issues or most unpreserved issues. Even when the Court of Appeals has jurisdiction to consider the issues, leave applications are granted in only a small percentage of cases.
Your attorney will make a leave application for you, or you may do so yourself if you prefer. Leave applications must be made within 30 days of receipt of the appellate court's order. When your attorney sends you the order, he or she will also advise you about seeking leave in your case. If leave is granted, your Appellate Advocates attorney will continue to represent you in the Court of Appeals.

I would like to watch the argument of my family member’s case, may I do so?

Yes. Arguments are open to the public and family members are welcome to attend. Directions are available here.