TO DONATE OR NOT TO DONATE : THAT IS THE QUESTION
This is the time of the year when we are bombarded with requests for money by charitable organizations. How do we know who to give to? They all seem to be worthy charities.
First use your common sense. When a charitable organization makes claims that seem too good or unrealistic that should be a red flag. For example, a charity sends you a glossy printed brochure by mail and in the material claims that they have no expenses or you see this claim in an ad in a newspaper or on a poster. Postage costs money, printing costs money, advertising costs money.
Another tactic is the charity claiming that all of your money goes to those you are helping. Someone is paying for the advertising, the printed brochure and other expenses not directly related to giving food or other benefits to whom the charity claims that they are helping. Therefore, when a charity makes such a claim, although technically it may be correct, they are being disingenuous. In many instances less money ends up going to those in need in the charities that make this claim than charities who do not make this claim.
For example, Charity X collects donations and puts all of the money in one pot and then from these funds uses $10,000 to pay for advertising, printing costs etc. They cannot claim that all of your donated money goes directly to help those in need.
Charity Y, as part of their fundraising campaign, first goes to certain individuals and asks them to fund the organization’s advertising campaign. These donors earmark $30,000 to pay for the advertising. Thus, this expense is now taken care of. Organization Y then represents to the public that all of their funds now donated will be used to directly help those in need. It comes out that Organization Y spends three times more than Organization X for advertising but gives the impression that all of the money donated is being used to directly help those in need.
Beware of donating to charities over the phone who are using telemarketers. A survey made by the New York State Attorney General found that for the year 2010 in 77% of the telemarketing campaigns the charities kept less than 50% of the funds raised and 47% of the charities retained less than 30% of the funds raised.
Do some investigation. A good place to start is the New York State Attorney General’s Charities Bureau website at www. charitiesnys.com. In the Report “Pennies for Charity”, which is available on line, they list the charity and what percentage raised by a telemarketing campaign went to the charity.
In addition, most charities are required to register with New York State Attorney General’s Office. The most common exception to the registration requirement is a charity operated, supervised or controlled by or in connection with a religious organization. If a charity does not fall within the exception and is not registered, that is a charity that you should be wary of donating to.
Registered charities are required to file various documents which you can access. For example, you can obtain a copy of the registered charities most recently filed financial report by writing to Charities Bureau, Office of the Attorney General, Attention FOIL Section, 120 Broadway, 3rd Floor, New York, NY 10271 or by sending an email request to [email protected]
There are other ways to find out about a charity. For example, some charities list their officers or supporters. If you know the individuals listed then you should contact them. If a charity lists an address then go and visit them.
We all have a finite amount of money to give to charity. Remember that every time you give to a charity that does not use the bulk of the money to help the needy you are taking away from one that does.
PROTECTING OUR PARENTS
When we were young, our parents took care of us and kept us out of harms way. Now our parents are older and many of us need to take care of them and keep them out of harms way. For example, a parent reaches a stage when they should no longer drive. It is hard for them to accept this reality. Sometimes we have to take action if they will not listen. Besides the obvious way, such as trying to convince the parent to sell the car or transfer the car to a family member, there are some other ways which are not as well known. For example, one should have the parent examined by a physician who then can write to the NYS DMV stating that the person is not medically fit to drive.
Another area that needs constant observation is one’s parent’s mental and physical condition. For example, one should look for mood changes or other changes in personality or physical changes. It could be due to an onset of dementia and/or depression. Often the parent is totally unaware of the change. Seniors between the ages of eighty and eighty four have double the rate of suicide of the general population.
Seniors are also prone to falling. There are systems that they can use such as Lifeline. However, many seniors are not willing to use the system. There are two ways that their children can help. One is making sure that someone speaks with their parent at least once a day to make sure that everything is alright. The second is going to their house and remove the obstacles that would cause a parent to fall.
Besides protecting one’s parent from themselves, there is a second group from which they need protection: strangers who take advantage of seniors to get them to make financial transactions that are not in their best interest. They run the gamut from insurance brokers to other financial planners who convince the elders to move funds so they can receive commissions to outright scams. Therefore, it is important for one to speak with the parent about any expenditures and to check their mail. It would be a good idea to try to obtain a power of attorney in order to give the child the authority to speak with financial institutions or others if a problem develops.
Home health care is necessary and helpful for seniors. However, there have been workers who have taken advantage of seniors by walking away with property, getting them to give them money or have physically abused the seniors. If a parent has bruises or other marks, an inquiry is necessary. It could be nothing or it could be abuse by an aide or a spouse or the parent harming themselves.
Unfortunately, sometimes a third group that seniors need protection from is immediate family members who abuse their trust for financial gain. These unscrupulous family members will behave just as strangers might, such as convincing the parent to sign documents and misleading them as to what they are signing. They will also engage in conduct that drives a wedge between their other siblings and their parents in order to convince the parents to give them the money. To cover their tracks they will convince the parent to give them sole control over the parent’s money. Therefore, it is very difficult for the other children to find out about the misconduct. However, there are signs that one should watch for such as significant transfers of funds by the parent to one child, changing of a beneficiary on an account and transferring an account to a new company. Another red flag is when a parent all of a sudden acts out of character. The parent who always said nice things about one child and their spouse suddenly has nothing good to say about either of them. On the other hand, the parent has only nice things to say about another sibling and spouse and why only they need financial help.
Many families have been destroyed because of such behavior or because of false accusations. Therefore, one should tread lightly before making such allegations. It may be hard to accept, but sometimes parents make a rational decision to treat their children differently. Therefore, it is important to speak with an individual, such as a lawyer, who is not emotionally involved and can properly gauge the situation. Ultimately, if there is improper conduct one could go to court to have a guardian appointed and have the transfers set aside. However, this should be a last resort. It is costly and will cause a lot of turmoil. One could only daven and hope that in such situation the greedy family member realizes the ramifications of what they are doing and will try to work it out with their siblings.
The bottom line is that one must be vigilant in making sure that their parents are protected in their old age.
DIFFERENCES IN PROCEDURE BETWEEN CIVIL AND CRIMINAL APPEALS
The statutory rules concerning the procedure for civil appeals generally are in CPLR 5501 et seq., for appeals to the Court of Appeals CPLR 5601 et seq. and for appeals to the Appellate Division CPLR 5701 et seq. The rules concerning criminal appeals are found in CPL 450.00 et seq., CPL 460.00 et seq. and CPL 470.00 et seq.
In addition, each of the four appellate divisions has its own rules and the Court of Appeals has its own rules.
Any rule in the 500’s is a Court of Appeals Rule. The Appellate Division First Department rules are sections 600-636, the Second Department rules are sections 670-711, the Third Department rules are in sections 800-840 and the Fourth Department rules are in sections 1000- 1040.In citing the rules, one should preface it with 22 NYCRR such as 22 NYCRR 670.3
I will be addressing appeals involving actions commenced in the Supreme Court. Although the CPL refers to procedures involving a death penalty case since the death penalty statute was declared unconstitutional in People v. LaValle, 3 N.Y.3d 88, 131 (2004) I will not mention the statutes in the outline.
Many types of cases that lawyers consider to be a criminal proceeding, technically, are a civil proceeding. Examples include habeas corpus, hearing before a parole board, Article 78 proceeding of a denial of parole, a neglect proceeding in Family Court where it is alleged that the defendant engaged in conduct that would constitute a crime and risk level assessment per Sex Offender Registration Act. See CPLR 7002 (habeas corpus) (Article 78) (CPLR 7801 et seq.); (Family Court Article 10); Correction Law Section 168-d (3).
Appeal as of Right to Immediate Appellate Court
Defendant CPL 450.10- Judgment; Sentence; Sentence including civil forfeiture order; setting aside the sentence upon motion of People; order denying motion pursuant to CPL 440.30 for forensic DNA testing. (CPL Article 440 contains post judgment motions). Interlocutory Orders are not appealable. Can raise on appeal from judgment of conviction determination made by the Court in an Interlocutory Order.
People- CPL 450.20 lists twelve situations, including, the granting motion to set aside the verdict, dismissing an accusatory instrument or a count or reducing a count and directing the filing of a prosecutor’s information; granting motion pursuant to CPL 440.20 or CPL 440.10; setting aside or modifying a verdict of forfeiture; granting DNA testing; order finding the defendant mentally retarded; appeal from a sentence that is invalid as a matter of law. Before trial, appeal from the granting suppression provided that the People file a statement pursuant to CPL 450.50 (without suppressed evidence, remaining proof insufficient to convict as a matter of law or as a practical matter impossible to convict).
Judgments whether interlocutory or final unless the judgment is after an Appellate Division order disposing of all issues CPLR 5701 (a).
Orders whether interlocutory or final if they fall into the seven categories listed under CPLR 5701 (a) (2). The broadest category is “(iv) involves some part of the merits: or (v) affects a substantial right.” Thus, the vast majority of orders are appealable as of right.
Appeal By Permission to Intermediate Appellate Court
Criminal- Order denying a motion pursuant to CPL 440.20 to set aside a sentence or order denying a motion made pursuant to CPL 440.10 to vacate a judgment CPL 450.15.
Civil- When order not appealable as of right, can request permission to appeal CPLR 5701 ©. There are exceptions to this rule. The most common situation when the order is not appealable, even by permission, is the denial of a motion to reargue. See coursebook materials on Appellate Division jurisdiction.
As of Right and Directly to the Court of Appeals from the Supreme Court
Civil- Validity of New York or United States statutes under the state or federal constitution CPLR 5601 (b). The particulars of this section are addressed in detail in other materials in the coursebook.
As of Right from Intermediate Appellate Court
Civil – See CPLR 5601 (a) Two dissents; intermediate court finally determines action where directly involved construction of the New York state or United States constitution CPLR 5601 (b); stipulation judgment absolute CPLR 5601 ©.
By Permission from Intermediate Appellate Court
Criminal- Adverse or partially adverse order of an intermediate appellate court on a question of law. This also includes the denial or granting of the motion in the Appellate Division of ineffective appellate counsel. CPL 450.90.
Civil- CPLR 5602 – Final Order not appealable as of right- Court of Appeals or Appellate Division can grant permission to review. Non-final order only by permission of the Appellate Division CPLR 5602 (b) (1). Other situations that are less common see CPLR 5602 (a) (b) and other materials in coursebook.
Criminal -Does not require a written order. Can appeal from an oral order People v. Elmer, 19 N.Y.3d 501,507 (2012).
Civil- Requires a written order Eaton v. Eaton, 46 A.D.3d 1432 (4th Dept. 2007); Small v. Suffolk County Honda, 141 A.D.2d 448,449 (1st Dept. 1988).
File With Note of Appeal
First Department- two copies of a profile statement listing title of action, indictment number, county and court from where appeal is taken; full names of the defendant and any co-defendants; name address and telephone number of defense counsel, charges upon which the defendant was convicted; pre-trial hearings and dates, trial and/or plea date; whether the court ordered daily copy of the hearing or trial transcript were received and returned Rule 606.5 (b) (1).
Second Department: RADI (Request for Appellate Division Intervention) Criminal- Form D usually prepared by Clerk. Rule 670.3 (b).
First Department – A Pre-Argument Statement except for cases originating in Family Court Rule 600.17 (a).
Second Department- RADI, Civil- Form A Rule 670.3 (a).
Third Department- File a pre-calendar statement except in cases in Family Court proceedings involving child abuse or neglect, juvenile delinquency or persons in need of supervision, appeals from decisions of the Unemployment Insurance Appeal Board and Workers’ Compensation Board or appeals pursuant to Correction Law Section 168-n (3) 800.24 (a).
Time to File Notice of Appeal
Civil- Thirty days after personal service of Order/Judgment with notice of entry or 35 days if by regular mail CPLR 5513.
Criminal- Thirty days from the imposition of the sentence CPL 460.10; People v. Coaye, 68 N.Y.2d 857 (1986); People v. Torres, 179 A.D.2d 358 (1st Dept. 1992).
Where the sentence and entry of judgment follow an oral order, the People’s appeal is within 30 days after the imposition of sentence People v. Coaye, 68 N.Y.2d 857 (1986). (Reduced conviction to a lower count and then sentenced the defendant).
Thirty days after service by the prevailing party of an order not included in the judgment (post judgment motions or order when no judgment made ) (CPL 460.10 (1) (a); People v. Washington, 86 N.Y.2d 853 (1995). The Court in Washington did not address whether the order has to be served with notice of entry. There is a dispute whether service with a notice of entry is required. Compare People v. Washington, 209 A.D.2d 162 (1st Dept. 1994) (no); People v. Aubin, 245 A.D.2d 805 (3rd Dept. 1997) (yes).
When appeal is by permission, then 30 days after service of the order CPL Section 460.10 (4) (a), (5) (a).
Time to File Notice of Cross- Appeal
Civil- A party upon whom an adverse party has served a notice of appeal or motion for permission to appeal has either 10 days after such service or 30 days after service of the order with notice of entry, whichever is longer to file a cross-notice of appeal or a cross-application for permission to appeal CPLR 5513 ©.
Criminal-No extension for filing cross notice of appeal or cross-permission to appeal listed in the CPL.
Extension of Time To File a Notice of Appeal
No right to extend either by stipulation or by the appellate court Hecht v. City of New York, 60 N.Y.2d 57 (1983). Exceptions include within the time required to file notice of appeal the attorney becomes disabled, party mistakes the method to appeal seeking permission to appeal when appeal is as of right or visa-versa or service timely, while filing not timely or visa-versa or an event permitting a substitution of parties occurs CPLR 5514.
Defendant- Right to extend if the failure to file was due to (a) improper conduct of a public servant or improper conduct, death or disability of the defendant’s attorney or (b) the inability of the defendant and his attorney to have communicated, in person or by mail, concerning whether an appeal should be taken, prior to the incarceration in an institution and through no lack of diligence or fault of the attorney or defendant. The motion is made to the immediate appellate court and has to be made within one year CPL 460.30 (1). People v. Corso, 40 N.Y.2d 578 (1976). An application can be made after one year by writ of error coram nobis when an attorney failed to comply with the defendant’s timely request for filing a notice of appeal and the omission could not reasonably have been discovered by the defendant within one year People v. Syville, 15 N.Y.3d 391 (2010). People precluded from raising one year limitation when through action or unjustifiable inaction by the prosecutor, defendant’s diligent and good faith efforts to exercise his appellate rights within the one year time frame were thwarted People v. Thomas, 47 N.Y.2d 37 (1979).
The one year rule also applies to a request for permission to appeal to the Court of Appeals CPL 460.30, Rule 500.20 (g).
The People have no right to an extension of time to file a notice of appeal People v. Marsh, 127 A.D.2d 945 (3rd Dept. 1987).
The defendant’s failure to serve a notice of appeal on the People which he filed with the Court is not a jurisdictional defect and thus may be waived. People v. Sayles, 292 A.D.2d 641 (3rd Dept. 2002). In any event, CPL 460.10 (6) allows extension of time to serve notice of appeal on the respondent if the notice of appeal is timely filed with the Court.
An order of the Appellate Division granting or denying motion to file a late notice of appeal is appealable by permission to the Court of Appeals CPL 460.30 (6). This only applies to appeals that the party would have had as of right if the notice of appeal had been timely filed. A denial of an extension of time to make an application for permission to appeal to the Appellate Division is not reviewable by the Court of Appeals. People v. Nealy, 82 N.Y.2d 773 (1993).
Filing Notice of Appeal
Civil-$ 65.00 CPLR 8022 (a) except for a poor person, including a person represented by non-profit organization whose primary purpose is the furnishing of services to indigent persons or by private counsel working on the behalf or under the auspices of the organization. CPLR 1101, 1102.
Criminal- No Fee.
Civil $315. Except for a poor person, including a person represented by non-profit organization whose primary purpose is the furnishing of services to indigent persons or by private counsel working on the behalf or under the auspices of the organization or when the State is the appellant CPLR 1101, 1102, 8017,8022.
Third Department also exempts claimant appealing the decision of the Unemployment Insurance Board from paying the fee 800.23 (a)
There is no additional fee for perfecting cross-appeal if appeal perfected see Rule 600.15, 670.22.
Civil- $45 except for a motion for leave to appeal as a poor person pursuant to CPLR 1101 (a); Rule 600.15 (a) (6), 670.22 (a) (2), 800.23. No motion is required for poor person status when the person is represented by non-profit organization whose primary purpose is the furnishing of services to indigent persons or by private counsel working on the behalf or under the auspices of the organization CPLR 1101 (e).
Right to Assigned Counsel
Criminal- Indigent has the right to counsel to be appointed and paid for by the government Gideon v. Wainwright, 372 US 335, 344 (1963).
Civil- No right to an attorney in private civil litigation. Matter of Smiley, 36 N.Y.2d 433 (1975). However there is a statutory right to counsel, which includes assignment of counsel for the indigent, for most matters that arise in the Family Court and in SORA proceedings see Family Court Act Section 262 and Correction Law Section 168-n(3). In some situations also constitutional right to counsel Matter of Evan F., 29 A.D.3d 905 (2nd Dept. 2006) (neglect proceeding under Article 10 FCA).
Defendant- none. Need order granting stay and fixing bail or releasing on one’s own recognizance CPL 460.50 (1). Only one application allowed CPL 460.50(3); 460.60 (2); see People v. Shakur, 215 A.D.2d 184 (1st Dept. 1995). There is no direct appeal of a denial of a stay application Finetti v. Harris, 609 F.2d 594,597 (2d. Cir. 1979); see also People v. Shakur, 215 A.D.2d 184 (1st Dept. 1995). Factors considered in a stay application. See CPL 510.30(2) (a). Stays not allowed in certain cases See CPL 530.50.
People- Appeal to immediate appellate court from an order reducing a count or counts of an indictment and dismissing an indictment and directing the filing of a prosecutor’s information CPL 460.40 (2)
No provision vacating the automatic stay.
CPLR 5519- (a) government entity files notice of appeal except as to cases covered under Family Court Act Section 1114; Undertaking necessary to satisfy payment of money whether required in a lump sum or in installments; judgment/order directs execution of instrument and instrument executed and deposited in office of entry of judgment/ order; appellant possession or control of real property judgment directs be conveyed, undertaking set by Court for use and occupancy; judgment/order directs assignment or delivery of personal property and property is placed in the Trial Court or the Trial Court sets an undertaking.
Automatic stay can be vacated by Court CPLR 5519 ©.
Length of Stay
Stay if granted, limited to 120 days unless the appellate court extends the time for argument or submission of the appeal beyond 120 days or upon an application of the defendant the Court expressly orders that the order continue until the appeal is determined or some other future date or occurrence CPL 460.50 (4), CPL 460.60 (3).
Upon affirmance by Appellate Division, when there had been a stay, the Appellate Division remits the case to the Trial Court where the judgment was entered. The defendant, his surety and attorney are given at least two days notice by the Trial Court for the defendant to surrender himself CPL 460.50 (d) (5).
A similar rule applies when a stay is granted by the Court of Appeals and the Court of Appeals then affirms CPL 460.60 (b) (4).
Stay continues after affirmance until the determination of the motion or the appeal if motion for leave to appeal or a notice of appeal is filed within five days of the service of the order of affirmance or modification with notice of entry on the appellant CPLR 5519 (e). This also applies to discretionary stays. DFI Communications Inc. v. Greenberg, 41 N.Y.2d 1017 (1977).
Time to Perfect
Civil – Second Department- Six months from the date of the Notice of Appeal 670.8 (e) (1) First and Third- Nine months from date of Notice of Appeal Rule 600.11 (a) (3), Rule 800.12, Fourth Department Nine months from service of Notice of Appeal 1000.12 (b).
Defendant’s appeal-120 days from last day that the notice of appeal was required to be filed Rule 600.8 (b).
People’s Appeal- nine months from filing notice of appeal. Rule 600.8 (f).
Defendant’s Appeal -nine months from the date of the Notice of Appeal if the defendant did not apply for assignment of counsel Rule 670.8 (f).
People’s Appeal- six months from the date of the notice of appeal except three months for appeals under CPL 450.20 (1-a) or (8) Rule 670.8. (g).
Third Department – 60 days after the last day for filing a notice of appeal 800.14 (b).
Fourth Department- Assigned counsel cases 120 days of receipt of transcript Rule 1000.2 ©.
Request for Enlargement of Time
The First Department requires that the movant should submit an affidavit satisfactorily explaining the delay and stating whether there is an order of stay of judgment pending the determination of the appeal and if so when it was granted and whether the defendant is free on bail or his own recognizance 600.8 see also 600.12© (4) ( the sentence imposed and whether the defendant is on probation or parole, or free on an order of stay of judgment pending determination of the appeal).
Second Department has the same rules for civil and criminal appeals 670.8 (d).
Third Department requires that the movant should submit an affidavit. The affidavit shall state (1) the date of conviction; (2) whether by trial or plea; (3) whether appellant is free on bail; (4) the date the notice of appeal was filed; (5) the date the trial transcript was ordered; (6) whether the transcript has been filed; (7) if the complete transcript has not been filed, the date it is expected to be filed; and (8) the date appellant’s brief and appendix will be filed 800.14 ©
The Fourth Department requires a motion pursuant to CPL 460.30 to extend the time to take an appeal shall be made within one year of the date on which the time to take an appeal expired. An affidavit in support of the motion shall set forth facts demonstrating that the appeal was not timely taken because of the improper conduct of a public servant, the improper conduct, death or disability of the defendant’s attorney or the inability of the defendant and the defendant’s attorney to communicate about whether an appeal should be taken before the time to take the appeal expired. (1) Filed with the motion papers shall be proof of service of the papers on defendant’s trial counsel 1000.13 (I)
First Department- Affidavit satisfactorily explaining the delay and containing the following information: the nature of the order or judgement appealed from; the date the judgment or order appealed from was entered or, if the matter was transferred to this court pursuant to CPLR 7804, the date of the order of transferral; the date the notice of appeal was served; whether any enlargement of time to perfect the appeal has been granted 600.12
Third Department- Affidavit showing reasonable excuse for the delay and facts showing merit to the appeal or proceeding 800.12
Fourth Department Affidavit showing reasonable excuse for the delay and intent to file briefly within a reasonable time 1000.13 (h)
First Department- Dismissal Calendar May and October. Criminal appeals or causes and all appeals involving writs of habeas corpus in criminal cases not perfected within eighteen months of awarding poor person relief are placed on the calender. Notice given to the defendant and his attorney on the appeal or one who last appeared for him. Rule 600.12 © (2).
Second Department-No dismissal calendar. However deemed abandoned if no application for assignment of counsel is made by defendant within nine months of the date of the notice of appeal Rule 670.8 (f).
Published in Law Journal-. First Department in May Rule 600.12 ©. Second Department periodically Rule 670.8 (h).
Third Department no requirement of publication. Deemed abandoned if not perfected within nine months Rule 800.12
Fourth Department no requirement of publication. Deemed abandoned and dismissed if not perfected within nine months Rule 1000.12 (b).
Withdrawal of Appeal
Court of Appeals
Civil- stipulation signed by attorneys for all parties to the appeal. Criminal- client must also sign request. Rule 500.8 (a).
Record on Appeal
First Department- needs Court permission to proceed on the original record. Rule 600.8 (a) (1).
Second Department- can be heard on the original record without requesting permission from the Court. Rule 670.9 (d) (viii)
First and Second Departments -People’s appeal pursuant to CPL 450.20 (1-a) (reducing a count or counts of an indictment, dismissing the indictment or directing the filing of a prosecutor’s information) should include an appendix Rule 600.8, 670.12 (e)
Third and Fourth Department- only by Appendix method Rule 800.14, 1004 (e) (1).
Civil- Must file record; either a full record or by appendix method Rule 600.5., 670.9 (a) (b), 800.4, 1000.3
In the First Department one can proceed on the original papers without having to request Court permission for election cases, an appeal from Family Court and appeals concerning compensation awarded to a Judicial appointee. Rule 600.6, 600.9, 600.19.
However, in the Second Department the following appeals and proceedings can be heard on the original record: (a) appeals from the Appellate Term; (b) appeals from the Family Court; © appeals under the Election Law; (d) appeals under the Human Rights Law (Executive Law Section 298); (e) appeals where the sole issue is compensation of a judicial appointee; (f) appeals under Correction Law Section 168-d(3) and 168-n (3); (g) other appeals where a statute authorizes an original record; (h) transferred Article 78 proceedings; (I) transferred proceeding under the Human Rights Law (Executive Law Section 298); (j) special proceedings listed in Rule 670.18; (k) appeals where the Appellate Division has authorized to proceed upon the original record. Rule 670.9 (d) 1; 670.16, 670.17, 670.18.
In the Fourth Department transferred proceedings and election cases can be heard on the original record Rule 1000.5, 1000.8 (a). A person granted poor person status only has to file one copy of the original record Rule 1000.14 (2).
The First Department requires a statement setting forth the decision and judgment and sentence imposed, whether an application for a stay was made, the date of the application, to whom it was made and the decision of the Court. Rule 600.8 (a) (2).
Second Department. Does not require mentioning about a stay unless it was granted. In addition to setting forth the decision and judgment and sentence imposed the statement, the statement should set forth whether an order issued pursuant to CPL 460.50 is outstanding, date of the order, the name of the judge who issued it and whether the defendant is free on bail or on his or her own recognizance or is incarcerated and whether there were co-defendants in the trial court, the disposition of their cases and status of any appeals by the co-defendant Rule 670.10.3 (g) (2) (viii) (B).
Civil- If perfected on original papers-
The First Department requires opinion and findings of a hearing officer and the determination and decision of an administrative department board or agency to be appended to the brief filed by same 600.10 (d) (1) (iv). In other cases, the opinion should be annexed to the brief Rule 600.10 (d) (2) (vi).
Second Department- Annex to the brief a copy of judgment or order appealed from, the decision, if any, the notice of appeal and copy of any order transferring the proceeding to the Appellate Division. Rule 670.10.3(g) (2) (vi).
First Department- Appeal from an order involving alimony and counsel fees, the brief should also state the date of joinder of issue and whether the case has been noticed for trial. Rule 600.10 (d) (2) (vii).
Second Department- Matrimonial action involving pendente lite, brief should state whether the issue has been joined, if so the date it was joined and whether the case has been noticed for trial. Rule 670.10.3 (g) (2) (vii).
Service of Brief on the Defendant
Criminal- There is no state constitutional right to file a pro-se supplemental brief. People v. White, 73 N.Y.2d 468 (1989). Nevertheless the Second and Fourth Department requires that you serve your client with a copy of the brief that you are filing and submit an affidavit of service. Rule 670.12 (g) (1), 1022.11 ©. Normally there is no requirement to tell the client that he has a right within 30 days to make an application to the Court for permission to file a supplemental brief See Rule 670.12 (h)
The Appellate Division cannot require the People to personally serve their appellate brief on the defendant pursuant to its rule-making authority. People v. Ramos, 85 N.Y.2d 678 (1995). Old rule 600.8 (f). The current Appellate Division First Department rule requires the People to serve the defendant’s appellate attorney if he has appeared or if no appellate attorney has appeared then on the attorney who last appeared for the defendant in the trial court Rule 600.8 (f). See however, Donovan v. Pesce, 73 A.D.3d 137,141 (2nd Dept. 2010) (upheld Appellate Term order requiring personal service of the brief on the defendant). The Fourth Department requires service on the defendant in any manner authorized by CPLR 2013 Rule 1000.3 (g).
Civil-No requirement to serve your client with a copy of the brief.
Proceed by Motion
Criminal- In the Second Department when the only issue on appeal is the legality, propriety or excessiveness of the sentence, you can proceed by motion. Rule 670.12 © (1).
Civil- Special Proceeding originating in Appellate Division Rule 600. 2(b), 670.5. 800.2 (b); 1000.9. However the Second and Third Departments requires briefs in certain special proceedings. Rule 670.18, 800.©. The Fourth Department requires briefs in all cases Rule 1000.9 ©.
Appeals concerning compensation awarded to a judicial appointee. 600.19; 670.15 ( appellant’s option whether to proceed by motion or by regular manner of appeals).
Oral Argument Allowed
First Department- all cases except for an order concerning a grand jury report Rule 600.4 (a) (7); 600.16 (a).
Second Department & Third Department All cases except legality, propriety or excessiveness of the sentence and grand jury reports. Rule 670.20 © 800.10 (3), 800.15. See however, Rule 800.14 (g).
Fourth Department- not allowed when only issue is the legality or length of the sentence imposed Rule 1000.11 ©.
The First Department lists thirteen categories of appeals that can be argued and indicates the remainder is on submission Rule 600.4. (a) (b).
Second Department- no argument allowed in issues involving maintenance, spousal support, child support, counsel fees, calender and practice matters including but not limited to bill of particulars, preferences, correction of pleadings, examinations before trial; discovery of records, interrogatories, physical examinations, change of venue and transfers of actions from or to the Supreme Court and determinations made pursuant to the sex offender registration act Rule 670.20 ©.
Third Department- does not allow argument on appeals from the Unemployment Insurance Appeal Board, Workers’ Compensation Board and a CPLR Article 78 proceeding where sole issue is whether there was substantial evidence to support the determination Rule 800.10 (a).
Fourth Department- Not allow argument on a transferred CPLR Article 78 proceeding where sole issue is whether there was substantial evidence to support the determination Rule 1000.12 ©.
Leave Applications to the Court of Appeals
Number of and what is included in the Application.
Two. Can first request leave from the Appellate Division and once it is denied, then from the Court of Appeals CPLR 5602 (a). In the Appellate Division it is made by motion to the Court and not to a particular judge.
Must be made by motion. Rule 500.22 indicates what is necessary to include in the application.
Only entitled to one leave application either to the Appellate Division or to the Court of Appeals CPL 460.50 (3). However, there is no right to request leave from a denial by the Appellate Division of a request for leave to the Appellate Division. People v. Adams, 82 N.Y.2d 773 (1993); People v. James, 206 A.D.2d 243 (1st Dept. 1994).
Under most circumstances the one application should be made to the Court of Appeals and not to the Appellate Division. Although one’s chance for obtaining leave to the Court of Appeals is slim, the chances are better with a request to the Court of Appeals and not to the Appellate Division. The reason given is that the Appellate Division wants to let the Court of Appeals control its calendar and to decide which cases it wants to consider. The exception to the rule is where there is a dissenting Judge. In a criminal case the party requesting leave to appeal to the Court of Appeals in the Appellate Division has the right to request leave from any Judge who was on the panel.
Applications to the Chief Judge for leave to appeal in a criminal case (CPL 460.20) shall be by letter addressed to 20 Eagle Street, Albany, New York 12207-1095, and shall be sent to the Clerk of the Court, with proof of service of one copy on the adverse party.
The letter should include the names of all co-defendants in the trial court, if any, and the status of their appeals, if known; whether an application has been addressed to a justice of the Appellate Division; whether oral argument is requested and grounds upon which leave to appeal is sought. Particular written attention shall be given to reviewability and preservation of error identifying and reproducing the particular portions of the record where the questions sought to be reviewed are raised and preserved.
Also included are a copy of the briefs submitted in the immediate appellate court, the order and decision of the immediate appellate court and all relevant opinions or memoranda of the courts below along with any other papers to be relied upon in furtherance of the application and if the defendant is a corporation or other business entity, a disclosure statement Rule 520.20(b) (1).
After the application is assigned to a Judge for review, counsel will be given an opportunity to serve and file additional submissions, if any, and opposing counsel will be given an opportunity to respond. Rule 500.20 (a)
An application for leave to appeal from an intermediate appellate court order determining an application for coram nobis relief shall include: (I) the order and decision sought to be appealed from; (ii) the papers in support of and opposing the application filed in the intermediate appellate court; and (iii) the intermediate appellate court decision and order sought to be vacated, as well as the briefs filed on the underlying appeal, if available. CPL 500.20 (b)(2).
It is important that when you make the application to request leave you must raise all the issues that you raised in the Court below. Also, where applicable one should raise a claim of the violation of an amendment to the United States Constitution. The failure to raise a federal constitutional claim in the leave application, even if raised in the Trial Court and in the Appellate Division, does not preserve the claim for an application in the Federal Court for Habeas Corpus or on certiorari appeal O’Sullivan v. Boerckel, 526 U.S. 838, 119 Sct. 1728 (1999); Picard v. Connor, 404 US 270 (1971).
Court of Appeals does not assign counsel for leave applications. Once leave is granted, an application could be made for assignment of counsel Rule 500.20 (e).
A request for a stay can be incorporated in an application for leave to appeal or made separately by letter, with proof of service of one copy on the other side. The letter should state (a) whether the relief sought has been previously requested; whether the defendant is presently incarcerated and the incarceration status, if known of any co-defendants and defendant is at liberty whether a surrender date has been set and the conditions of the release. Rule 500.20 (f).
Civil- only by motion. Need to show timeliness, jurisdiction and reason to grant leave Rule 500.22.
Basis for Affirmance
An appellate court cannot affirm a judgment in a criminal case on a ground not decided adversely to the defendant-appellant in the Trial Court People v. LaFontaine, 92 N.Y.2d 470,474 (1998); CPL Section 470.15.
An appellate court can affirm on a ground rejected by the Trial Court. See Parochial v. Board of Education, 60 N.Y.2d 539,545,546 (1983)
Ineffective Assistance of Counsel
Criminal- Constitutional right to effective counsel. A claim of ineffective trial or appellate counsel can be raised in the appellate courts if based on the record before the Court. A claim of ineffective assistance of trial counsel can be brought on direct appeal or by granting of leave to appeal the denial of a CPL 440.00 motion alleging ineffective assistance of trial counsel. Ineffective assistance of trial counsel is usually raised first in the trial court by motion made under CPL 440.00 see People v. Rivera, 71 N.Y.2d 705 (1988).
Ineffective assistance of appellate counsel is brought by writ of Error Coram Nobis in the Appellate Division People v. Bachert, 69 N.Y.2d 593 (1987).
The issue of ineffective appellate counsel is first raised in the immediate appellate court with a right to request leave to appeal in the Court of Appeals if the claim is denied. See CPL 450.90 (1).
Civil- A claim of ineffective counsel is not entertained except in extraordinary circumstances. Galil v. Scott, 61 A.D.3d 820 (2nd Dept. 2009); Olmstead v. Federated Department Stores, 208 A.D.2d 979 (3rd Dept. 2004). If counsel makes a mistake, the remedy is to sue for malpractice. However, in Family Court appeals such as under Article 10, the constitutional standard is the same as in a criminal proceeding Matter of Alfred, 237 A.D.2d 517 (2nd Dept. 1997).
Trial Counsel’s Obligations
Criminal & related proceedings
Trial Counsel has an obligation in criminal actions/ CPL 440.10 motions, habeas corpus and Article 78 actions arising out of criminal proceedings, upon conviction or denial of motions made under CPL 440.10 or CPL 440.20 or denial or dismissal of a habeas corpus or Article 78 proceeding, upon the pronouncement of sentence or service of the order, to give written notice to his client advising of his rights concerning the appeal and requesting instructions about what the client wants to do. Rule 606.5 (b), 671.3 (a)(b). The First Department also includes a determination revoking parole 606.5 (b) (1). The Third and Fourth Departments do not have any requirement in an Article 78 proceeding. Rule 821.2, 1022.11
Counsel also has the obligation to inform the defendant of his right upon proof of financial inability to prosecute the action as a poor person and inter-alia have counsel appointed. Rule 606.5 (b), 671.3 (b) (3), 821.2, 1022.11. If the client indicates that he wants to appeal or make an application, then counsel is obligated to file the necessary formal notice of appeal or application to the appropriate appellate court. Rule 671.3 (a)(b) (4), 606.5 (a) (b), 821.2 (b), 1022.11 (a)
In the Second Department if counsel has not been retained to prosecute the appeal, the notice of appeal should indicate that it is being filed per rule 671.3 (a) and it should not be deemed counsel’s appearance as the appellant’s attorney for the appeal.
If transcribed at trial per order of the Court, the trial counsel is required to give copy to the defendant’s appellate counsel. Rule 606.6; 671.9.
In the Second, Third and Fourth Department if the defendant has assigned counsel in the trial court and the People appeal to the Appellate Division, the defendant’s trial counsel continues as the defendant’s appellate counsel as the respondent on the appeal until entry of the order determining the appeal and should perform any additional duties as required by the rules unless relieved by the Court. Rule 671.3 (f), 800.14 (h) (4), 1000.7 ©. The failure to do so warrants the granting of a writ of error coram nobis People v. Braun, 15 N.Y.3d 875,876 (2010).
In the First Department, if no appellate counsel has appeared for the defendant, assigned trial counsel upon receipt of the People’s brief shall make diligent efforts to locate the defendant and if located, in writing inform the defendant that the People have filed a brief, the consequences of the appeal and the defendant’s rights. Rule 606.5 (d) (3). There is no requirement that assigned or retained trial counsel prepare and file a respondent’s brief for the defendant. Rule 606.5 (a) (1). If trial counsel is a member of the assigned counsel appellate panel, he or she, with the defendant’s written consent, may apply to the Appellate Division for appointment as appellate counsel. Rule 600.8 (g).
If the defendant’s trial counsel was retained and the People appeal, then the trial counsel upon receipt of the order by the People, has to inform the defendant of the consequences of the People’s appeal and right of the defendant, if indigent, to the appointment of counsel. People v. Forsythe, 105 A.D.3d 1430, 1432 (4th Dept. 2013); Second Department Rule 671.3 (d) (e) (duty starts upon receipt of Notice of Appeal); First Department Rule 606.5 (d) (duty commences upon receipt of order being appealed; makes no distinction between assigned and retained trial counsel).
People v. Garcia, 93 N.Y.2d 42,44 (1999) which involved a People’s appeal the Court held that the Trial Court is required to inform the defendant of the right to appellate counsel and how to obtain assigned counsel if indigent. If the Trial Court did not inform the defendant of said right then the Appellate Division should do so. In addition, the Appellate Division had an obligation to determine whether the defendant was represented or had waived counsel before it can consider and decide the People’s appeal. Id at 46
Generally Representation ends upon entry of final order or judgment in the Trial Court. Vitale v. La Cour, 92 A.D.2d 892 (2nd Dept. 1983). No requirement to appear as appellate counsel except per agreement. Nevertheless good idea to advise the client of right to appeal and time limitations for filing notice of appeal.
The Fourth Department requires that assigned or retained Trial Counsel has an obligation certain proceedings in Surrogate’s Court or Family Court upon entry of an order in which his client was unsuccessful to give written notice to his client advising him of the time limitations applicable to taking an appeal or moving for permission to appeal; the possible reasons upon which an appeal may be based; the nature and possible consequences of the appellate process; the manner of instituting an appeal or moving for permission to appeal; the procedure for obtaining a transcript of testimony, if any; and the right to apply for permission to proceed as a poor person Rule 1022.11a (a,b)
Moreover, when a party or the law guardian determines to appeal or to move for permission to appeal, counsel or the law guardian shall serve the notice of appeal or motion for permission and shall file the notice of appeal or motion for permission Except when counsel has been retained to prosecute the appeal, the notice of appeal may include the statement that it is being filed and served on behalf of appellant pursuant to 22 NYCRR1022.11a (c) and that it shall not be deemed an appearance by counsel as counsel for appellant on the appeal. When a party has indicated a desire to appeal, counsel shall, when appropriate, move for permission to proceed as a poor person and assignment of counsel pursuant to 22 NYCRR 1000.14. Rule 1022.11a (c-e).
Appellate Counsel’s Obligations
Appellate counsel has a duty upon service of notice of appeal or upon an order of appointment to notify the defendant that the People have taken an appeal and the consequences of the appeal Rule 606.5(d).
Appellate counsel in the appellate division has an obligation upon affirmance in criminal actions/ CPL 440.10 motions, habeas corpus and Article 78 actions arising out of criminal proceedings of a conviction or denial of motions made under CPL 440.10 or CPL 440.20 or denial or dismissal of a habeas corpus or Article 78 proceeding or upon entry of the order, to give written notice to his client advising of his rights concerning right to make an application for leave to appeal and requesting instructions as to whether the client wants to do so. Rule 671.4 (a)(b). First, Third and Fourth Departments omits Article 78 proceeding. 606.5 (b) (2), 821.2 (b), 1022.11 (b). Second Department also includes upon appeal by the People results in an order by the intermediate appellate court, adverse or partially adverse to the defendant Rule 671.4 (e).
If the client indicates that he wants to make an application then counsel is obligated to file the necessary application to the appropriate appellate court. Rule; 606.5 (b) (2), 671.3 (a), 821.2 (b), 1022.11 (b).
In addition, the First Department requires that parolee’s counsel, after notice of an adverse determination by the Board of Parole revoking his parole, shall advise the parolee of his right to bring an Article 78 proceeding and the time limitations to bring said proceeding Rule 606.5 (b) (2).
In Article 78 or a habeas corpus proceeding where there are two dissenters, appellate counsel in his written notice shall indicate to the defendant of his absolute right to appeal to the Court of Appeals. Rule 606.5 (b), 671.4 (b), (2), 821.2 (b), 1022.11 (b) (only mentions habeas corpus).
Second Department- In Article 78 or a habeas corpus proceeding where there are two dissenters if counsel has not been retained to prosecute the appeal in the Court of Appeals, the notice of appeal should indicate that it is being filed per rule 671.4 and it should not be deemed to be counsel’s appearance as the appellant’s attorney for the appeal. Rule 671.4 (b).
Criminal- If assigned counsel believes that an appeal is wholly frivolous the attorney may request permission to be relieved of the assignment. The request must be accompanied by an “Anders brief.”Anders v. California, 386 US 738 ( 1967); People v. Stokes, 95 N.Y.2d 633 (2001) A copy of the brief has to be sent to the defendant. Id
In the brief, counsel has to recite the facts and mention potential points and citations why no non frivolous issues can be raised. People v. Stokes, 95 N.Y.2d 633 (2001). Counsel also has to send a letter to the client indicating that if the defendant wishes to file a pro-se supplemental brief the defendant should notify the Court within 30 days after mailing, of his or her intention to do so People v. Saunders, 52 A.D.2d 833 (1st Dept. 1977); Rule 670.12 (g); see. Rule 1000.13 (q) 1022.11(a) 30 days before return date of motion.
In an assigned counsel case, if the attorney is incorrect and that there is a non frivolous issue on appeal, then the attorney is discharged and a new attorney is assigned. People v. Davis, 73 N.Y.2d 864 (1989). The Court names the outgoing attorney in its order, which is published in the NY Law Journel. See, e.g., People v. Rawlings, 150 A.D.2d 619 (2nd Dept. 1989).
Civil- Could be subject to sanctions Rule 670.2 (h), Rule 130-1. (c). If assigned counsel believes that appeal is totally frivolous, then counsel proceeds in the same manner as assigned criminal counsel See, e.g., Matter of Stuart v. Stuart, 21 A.D.3d 967 (2nd Dept. 2005).
In the Interest of Justice
Criminal- Right for the Appellate Division to consider unpreserved issues “in the interest of justice.”CPL 470.15 (3) (c)(6). The Court of Appeals has no right to consider issues in the interest of justice CPL 470.35 (1).
Civil- Generally no right to consider on appeal issues not raised in the Court below. There are some exceptions to this rule. See materials submitted in the preservation portion of the coursebook for examples of exceptions.
Civil- First Department-Rule 600.17 (e) Second Department – Rule 670.4 (b); Third Department- Rule 800.24-b
Criminal- No conferences.
CPL & CPLR
The CPL does not apply in civil cases. See CPL 1.10.Does the CPLR apply to Criminal Proceedings?
It is clear where the CPL explicitly refers to CPLR such as CPL 60.10, then the CPLR applies. See, e.g., People v. Cratsley, 68 NY2d 81 (1995).
The issue is in the other cases. The Appellate Division in the First and Third Departments have held that the CPLR has no application in criminal actions and proceedings People v. Stacchini, 108 A.D. 3d 866, FN1 (3rd Dept. 2013); People v. Silva, 122 A.D.2d 750 (1st Dept. 1986); See also People v. Crisp, 268 A.D.2d 247 (1st Dept. 2000). Although the Appellate Division Second Department has not decided the issue the Appellate Term has agreed with this position People v. Manupelli, 22 Misc.3d 67 (App. Term 2nd Dept. 2008).
Nevertheless, some lower courts including those in the covered under the First Department have ruled otherwise See, e.g., People v. Ellington, 2012 NY Slip Op 51219 (U) (Sup. Bronx 2012).
YOUR RIGHTS IN A CIVIL APPEAL
How is an appeal decided?
After the appellate court has reviewed the
briefs and record and, where necessary, heard
oral argument, it will issue a written order and
decision. This determination is based on the
appellate court’s decision of whether the lower
court made errors, and it states how the case will
be treated — that is, whether it will be affirmed,
reversed, modified or some combination thereof.
This decision will dictate whether there will
be additional proceedings in your case after the
appeal. These further proceedings may include
hearings, a complete trial or other activities in
the lower court to comply with the order of
the appellate court.
Are other remedies available
beyond the appeal?
If you are dissatisfied with the lower appellate
court’s order, you may be able to seek further
review in a higher appellate court. The Court of
Appeals is New York State’s highest court. Except
in rare instances, you may appeal to the Court of
Appeals only if permission of either the first
appellate court that heard your case or the Court
of Appeals itself is granted. This permission is
granted in only a small fraction of cases.
While taking an appeal is a complex time consuming and expensive process it is an effective process for correcting errors.
Your attorney is in the best position to advise you about the specifics
of your appeal and how to proceed with it.
The rules of the Court of Appeals, New York’s highest
court, and each of the Appellate Divisions are available online
or in the respective clerk’s offices. For more information,
please visit https://www.nycourts.gov/courts
This pamphlet, which is based on New York law, is intended
to inform, not to advise. No one should attempt to interpret
or apply any law without the aid of an attorney. Produced by
the New York State Bar Association in cooperation with the
Committee on Courts of Appellate Jurisdiction.
YOUR RIGHTS TO AN APPEAL IN A CRIMINAL CASE IN THE NEW YORK STATE COURTS
You have a right to appeal your
conviction, including your sentence
What is an appeal?
If you believe that any errors were committed in
your case, or that your sentence is too harsh, you have
the right to ask a higher court (an appellate court) to
review the proceedings. This request is called an appeal.
You, having asked for the appeal, are called the appellant.
The opposing party is known as the respondent.
The appellate court will decide if, because of errors
that occurred in the lower court, you should get relief,
for example, a new trial, dismissal of the charges or a
reduction in the sentence. The appeal is not a new trial.
No witnesses are heard in the appellate court, and no new
evidence or facts may be brought to the appellate court’s
attention. Instead, the appeal is based on the “record”
made (that is, the transcript of the proceedings, the trial
exhibits and the papers submitted) in the lower court.
Bear in mind that the sentence imposed by the
lower court will go into effect while the appeal is being
considered by the appellate court unless the trial judge
or appellate court stays the sentence or a part of it (orders
that it not go into effect). The order staying the appeal
may include a requirement to post bail.
How does the appeal process begin?
The appellate process begins after you are sentenced
when you “take an appeal” by sending a “notice of
appeal” to the lower court (“filing”) and sending it to the
District Attorney (“serving”). Generally, notices of appeal
are filed with the clerk of the criminal court. If that court
does not have a clerk, the notice is filed with the judge.
The notice of appeal is a document which informs the
other party and the court that you wish to have your
conviction reviewed in a particular appellate court.
It identifies all parties involved in the case (usually by
including the caption) and sets forth the nature of the
appeal (for example, an appeal from the judgment of
conviction under Ind. No. 0000-10). If you do not file a
notice of appeal, you cannot pursue an appeal. The rules
of the particular appellate court that reviews the
convictions from your lower court may require the service
and filing of additional papers with the notice of appeal.
You should keep in mind that each appellate court has
its own set of rules that you must follow.
You cannot “take an appeal” until you are sentenced, but the appeal will give you the opportunity to discuss everything that happened until you were sentenced.
Are there time limits for pursuing an appeal?
You must serve and file your notice of appeal within
30 days after you are sentenced. If you fail to follow this
time limit, your appeal most likely will be dismissed.
If you were prevented from filing the notice of appeal
on time because of improper conduct of a public servant,
because of improper conduct or death or disability of your
lawyer, or because you could not communicate with your
lawyer during the 30 days because you were in prison,
you can ask the appellate court for permission to file the
notice of appeal late.
How much will an appeal cost?
Typical expenses on an appeal include attorney’s fees
and the costs of getting the minutes of court appearances.
In addition, depending on the rules of the appellate
court, you may have to make a copy of a record of the
proceedings to send to the court and the respondent.
You will also have to make multiple copies of the brief
to send to the appellate court and the respondent.
If you think that you cannot afford to pursue an
appeal, you may be able to obtain “poor person status”
(in forma pauperis), which would mean that you would
not have to pay many or all of the costs and fees and
might result in a lawyer being appointed to represent
you. To get this relief, you must send the appellate
court a request for poor person status, including a sworn
statement showing your personal worth and sources of
income. The appellate court will decide whether you have
demonstrated that you are unable to pay some or all of the
necessary expenses. Even if you hire an attorney for the
appeal, you may be entitled to receive certain benefits of
“poor person status,” such as a free copy of the transcript,
since a decision on poor person status is based on your
own financial situation, not that of family or friends.
What happens after a notice of appeal is filed?
Once a notice of appeal is filed, the appellant must
begin to assemble the necessary materials to present
an effective argument on appeal. The process of getting
an appeal into a form so that the facts of the case and
arguments for relief can be presented to the appellate
court is called “perfecting the appeal.”
In preparing for the appeal, you will have to obtain
the minutes of the proceedings in the lower court that
help explain your arguments and you may also need to
reproduce a record of the proceedings in the lower court
or portions of the record, depending on the rules of the
appellate court. You will also have to prepare a brief,
a document that tells the story of the case and presents
your arguments, leading to the conclusion that the
appellate court should decide in your favor. Depending
on the rules of the appellate court, you will have to serve
the transcript and record on the respondent as well as
file it with the appellate court. You always have to serve
a brief on the respondent and file it with the appellate
court. How many copies you must serve and file and
when this must be done depends on the rules of the
The respondent will almost always file a brief in
response to yours arguing that the proceedings in the
lower court were correct or that any error should not
change the outcome of the case. The respondent may
also file additional papers from the record that were not
contained in the papers you sent, if he or she believes the
appellate court should consider those papers in deciding
the case. You have the right to file a brief answering the
respondent’s brief (“reply brief”), but you do not have
to. No further briefs are allowed to be filed with the
After all of the briefs have been filed with the appellate
court the next step is either oral argument (an oral
presentation before one or more judges from the appellate
court) or submission of the case without argument..
Oral argument is not required, but is used to provide
the parties with the opportunity to focus the court’s
attention on the strongest elements of their cases. It also
allows the parties to answer any questions the judges
deciding the appeal may have. If you have an attorney,
the attorney will present the oral argument. If you do
not, and you are able to come to court, then you can
present the oral argument. An appellant who is in prison
will not be brought to the appellate court to make or
listen to the oral argument.
May the People appeal?
Under certain limited circumstances the People may
appeal rulings in your favor, such as when the lower court
dismisses the case. In that case, the People are called the
appellant and you are called the respondent. As appellant,
the People have the same requirements as any other
appellant. If the People do serve you with a notice of
appeal, it is important that you obtain legal representation
for the appeal. You can hire a lawyer or you can ask the
appellate court to assign a lawyer. As a respondent, you
will not have to worry about preparing the record or
getting the transcripts. The appellant will have to send
these papers to you as well as his or her brief.
How is an appeal decided?
After the appellate judges assigned to the case have
reviewed the briefs, record and the oral argument, if any
they will decide the appeal, usually in a written paper
called an “order and decision.” If you are the appellant,
the order may affirm, modify or reverse the judgment
of conviction, or some combination thereof. If the People
are the appellant, the order will affirm, reverse or modify
the lower court order that was appeal.
If the appellate order does not affirm what happened
in the lower court, it may order additional proceedings
in the lower court, such as a hearing or a new trial, or it
may reduce the sentence, dismiss the charges, modify
the conviction itself, or some combination.
What can you do if you are not successful on the appeal?
If you are dissatisfied with the appellate court’s order,
you may ask for permission to file an appeal with the
Court of Appeals, the highest court in New York. This
permission can be granted by an individual judge of the
appellate court (if the appellate court was the Appellate
Division) or by an individual judge of the Court of
Appeals. If one judge denies the application, you may
not make another application to any judge. You must
ask for permission no later than 30 days after receiving
a copy of the order with notice of entry sent to you by
respondent, and you can make the request earlier, even
before the respondent sends you the order with notice
of entry. Permission to file an appeal is granted in only
a small fraction of cases. If you receive permission to
appeal, then you should hire an attorney or ask the
Court of Appeals to assign an attorney to help you
through the process.
There are other steps you can take. You have the right
to apply for permission to appeal to the United States
Supreme Court after permission to appeal to the Court
of Appeals has been denied or after the Court of Appeals
decides your appeal. Your case may present the kind of
issue that can be considered by a lower court in a motion
to vacate the conviction under Criminal Procedure Law,
section 440.10, or a motion to vacate the sentence under
Criminal Procedure Law, section 440.20. And if you have
tried all possibilities in the New York State courts, you
can apply for relief to a federal district court through a
petition for a writ of habeas corpus if your case presents
a federal constitutional issue and you satisfy the technical
requirements for bringing a case in federal court. These
procedures each have their own set of complicated rules
contained in statutes and court decisions.
Taking an appeal is a complicated, time-consuming and expensive process, but it can be an effective procedure for correcting errors.
This pamphlet, which is based on New York
law, is intended to provide general information, not to give
advice for particular circumstances. We hope it makes the first
stage of the appellate process, the appeal to the appellate court,
more understandable. However, it cannot substitute for an attorney’s advice or for your own careful study of the rules of the courts involved.
Produced by the New York State Bar Association
in cooperation with the Committee on Courts of Appellate