The Appeals Process
The process begins when the Appellate Division or Appellate Term, Second Department, assigns Appellate Advocates to represent an individual appealing a conviction.
2. Getting the Record
After we receive the order of assignment, the next step is to get the record on appeal. The record includes a full transcript of the trial or plea proceedings, exhibits that were admitted into evidence at trial, and any paperwork in the trial court file, such as motions submitted by the trial defense counsel.
This step of the process unfortunately can take many months to complete. This is because stenographers must type a copy of the transcript of the trial from their notes. They often have back orders of minutes and it can take quite some time for them to get to new orders.
3. Client and Attorney Discussion
Once Appellate Advocates has received the record, an attorney is assigned to the case. That attorney will send the client a copy of the full transcript. The client will have the opportunity to suggest issues for appeal, ask questions of the attorney, and discuss the case.
The attorney will read the entire record and identify potential issues for appeal. Selecting these issues is an important part of the appellate process. The attorney researches all potential issues thoroughly, eliminating those that are not viable, and accesses the strengths and weaknesses of those that are. The attorney then selects the issues that will give the client the best chance of success on appeal.
Once the issues are selected, the attorney will write to the client explaining what issues he or she plans to raise in the appeal. If there are any issues the client suggested that the attorney does not think should be raised, the attorney will provide the client an explanation.
4. The Brief
Once the issues are selected, the attorney writes a brief. Each brief goes through a rigorous editing process with one of the supervising attorneys.
The brief is then filed. Approximately 2-3 months later, and sometimes longer, the District Attorney’s office files a brief responding to our arguments. The Appellate Advocates attorney will send the client a copy of that response brief.
In some cases, a reply brief is necessary. The decision about whether to file a reply is up to the attorney and depends on whether or not the District Attorney’s brief raises new or unanticipated arguments.
Each attorney decides whether oral argument is necessary in an individual case. When a case is argued, the Appellate Advocates attorney and an attorney from the District Attorney's Office are each given approximately 10 minutes to present their case to the court. A panel of appellate judges hears the arguments and often the judges will ask the attorneys questions.
Arguments are open to the public and clients who are not incarcerated, their family members, and friends are welcome to attend.
The judges do not issue decisions on the day of argument, but issue written decisions between 3 weeks and several months afterward.
Each appeal is decided by a panel of appellate judges. In rare instances, if the judges on the panel are evenly divided, an additional judge is assigned to the case.
If the appeal is unsuccessful, the attorney will file a leave application to the Court of Appeals. The Court of Appeals is the highest court in New York State. This application is a request that the court hear the client’s appeal.