FAQs - Issue Selection and Briefing

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.

How will my attorney decide what issues to raise?

 First, your attorney will read the entire record in your case and identify possible issues to consider. Your attorney will also write to you, giving you a chance to bring up issues you are especially interested in. Once all potential issues are identified, your attorney must eliminate those that are not viable, and then assess the relative strengths and weaknesses of the viable issues.
 
 Your attorney’s aim is always to present the strongest appeal possible on your behalf. Often, the strongest appeal presents one or two compelling issues, rather than a larger number of issues, some of which are not as good.
 
All the attorneys at Appellate Advocates are experienced in both criminal and appellate law. They use their experience and judgment to decide what will make for the strongest presentation in each individual case. In order to make the best possible decisions on your behalf, your attorney will do legal research, examine the exhibits involved in your case, and confer with other experienced attorneys at Appellate Advocates.
 
The attorneys at Appellate Advocates are kept up-to-date on all important developments in the criminal law. They have access to the newest on-line research materials, and attend regular office meetings to discuss new decisions of particular interest. Even after your brief is filed, your attorney will be aware of, and able to call to the Court's attention, any new decisions that are relevant to your case.
 
Finally, every brief filed by Appellate Advocates is subjected to a thorough supervision process, in which it is read and edited by a supervisor with many years of criminal appellate experience. This provides an additional guarantee that the brief filed on your behalf will be as good as possible.

If there is an issue I would like my attorney to consider raising, what should I do?

 Write to your attorney as soon as he or she is assigned to your case. Do not hesitate to suggest issues to your attorney or to ask what your attorney plans to raise.
 
Frank and open communication between you and your attorney is extremely important. Do not hesitate to share your thoughts with your attorney. Your views are important to your attorney, just as your attorney’s expertise and best judgment are important to you.
 
If you and your attorney cannot reach agreement as to what issues to raise, you have the right to ask the Appellate Division or Appellate Term for permission to file a supplemen­tal brief raising an additional issue or issues. Such requests should not be made before you receive your brief from your attorney, but must be made within 30 days of the date on which we mailed the brief to you. If you seek permission to file a supplemental brief, your appeal will be delayed by the amount of time it takes you to file the supplemental brief and the District Attorney’s office to respond to it.

Can I raise an issue on appeal if my lawyer did not object at my trial?

The Appellate Division and Appellate Term have jurisdiction to consider both “issues of law” and “interest of justice” issues. Although there are a few exceptions, an “issue of law” generally exists only when it has been “preserved” by defense counsel making a timely, specific objection, request (for example, for a curative charge), or mistrial motion. It is to your advantage to have a legal error “preserved,” because then the Appellate Division or Appellate Termmust consider it, and must generally grant relief if it finds that the error was harmful.
 
If an issue is not “preserved,” the Appellate Division  or Appellate Term may consider in its “interest of justice” jurisdiction, or may refuse to consider it. Reversals in the “interest of justice” usually occur only if the court believes an error was so important that to affirm the conviction would be inconsistent with a basic sense of justice and fairness. Attorneys will raise good issues even if they are not preserved, but interest of justice reversals usually do not occur unless the evidence of guilt is weak, the error was especially serious, or there was a pattern of several errors that made the trial unfair.
 
An issue that is “waived,” rather than merely “unpreserved,” may not be raised on appeal. A waiver will occur if defense counsel fails to move to suppress an identification, confession, or physical evidence prior to trial. A guilty plea automatically waives many issues. A waiver may also occur if defense counsel specifically rejects something the court was willing to do for the defense.
 

Can I raise an issue that does not appear on the record?

Not on direct appeal, which is limited to the record on appeal. However, Criminal Procedure Law Article 440 provides that a motion may be made in the trial court to set aside the judgment of conviction if certain specific criteria are met. 440 motions are most often used to raise issues of newly discovered evidence (significant evidence that could not have been produced at the time of the trial), improper conduct that does not appear on the record, and ineffective assistance of trial counsel.
 
You should not try to file a 440 motion on your own. Doing so may delay your case or even foreclose you from raising a good issue later on. If you believe you have grounds for a 440 motion, or if you have any off-the-record information that you think might help you, please let your attorney know about it without delay. Your attorney can then help you assess the viability of a 440 motion. If your attorney decides that you have a strong 440 issue, he or she may be able to file the motion for you. At the least, he or she will be able to advise you as to how to proceed so you do not delay or jeopardize your appeal.