FAQs - Stays

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 stay pending appeal?

 In some extremely rare cases, it is possible to remain out of prison on a “stay pending appeal” (also called “bail pending appeal”) until your appeal is decided.

What should I do if I already have a stay?

It is very important that you notify us immediately if you have a stay. We must act expeditiously to make sure that the stay is extended pending the filing and determination of your appeal. Otherwise, your stay might expire and you could be rearrested.

Can I apply for a stay?

Only one application for a stay can be made. Therefore, if your trial judge was specifically asked for a stay and refused to grant you one, you cannot apply for one again. Also, you cannot apply for a stay if you were convicted of a Class A felony.
Anyone else can apply for a stay. However, if you obtain a stay and your conviction is later affirmed, you will have to start serving the remainder of your sentence again. You will not get credit toward your sentence for the time you were at liberty on the stay. For this reason, some clients prefer not to seek stays unless their chances of reversal are extremely good.
Stays usually involve the posting of bail, and bail is generally set at about twice the amount of your bail before trial. Therefore, you should also think about what amount of bail you would be able to raise.

What are my chances of getting a stay?

Judges want to be as certain as possible that, if they grant a stay application, you will not abscond or commit additional crimes. Therefore, you are extremely unlikely to get a stay if any of the following are true:
  • You have ever escaped, absconded, or bench warranted;
  • You have been convicted of a violent crime;
  • You are serving a long sentence; or
  • You have a prior felony conviction.
Although no one factor is likely to get you a stay pending appeal, a bail application might be viable if most of the following factors are present in your case:
  • The lack of any significant prior criminal record;
  • The absence of violence;
  • Very strong appellate issues, especially if they might lead to dismissal of the charges;
  • A short sentence;
  • Some extraordinary personal circumstance, such as a serious illness; or
  • Other factors showing that you are a good bail risk, such as a perfect court attendance, community ties, solid employment, or a supportive family.

What should I do if I would like to ask for a stay?

Let us know and we will send you a questionnaire to fill out and return to us. We will use the information you provide, as well as what we already know about your case, to assess your eligibility for a stay and your chances of obtaining one.
Because the strength of your appellate issues is important to a stay applica­tion, it is sometimes best to apply for a stay only after we receive your record and can review it. However, you can write us about a stay at any time and we will assess the appropriateness of making a stay application.