Courts of “Original Instance” or Trial Courts

These are village courts, town courts, city courts, county courts, New York City courts, and district courts where a defendant has their first contact with the court system.

Felony cases are assigned to county courts, while misdemeanors may be handled in city courts or county courts, depending on the seriousness of the charge.

Intermediate Appellate Courts

These are reviewing courts, which look at the decision of the trial court to determine whether errors occurred. This category of courts includes county courts, which review cases from village, town, or city courts; appellate divisions of the supreme court; and appellate terms of the supreme court.

New York Court of Appeals

New York’s highest court, the court of appeals, hears criminal appeals from the state’s intermediate appellate courts, and in some instances from the trial courts, such as death penalty case appeals.

Criminal Court Structure

[From: https://nycourts.gov/courts/structure.shtml]

The Criminal Appeal Process in New York

Appeal to a New York Intermediate Court

An appeal is a request for judicial review of a trial court’s judgment by a panel of judges that has the authority to correct errors made by the lower court.

What Is a Notice of Appeal?

A notice of appeal is the document that indicates you wish to file an appeal. This is different than the actual appeal itself, which must be filed separately.

Procedure for Appeals

To ask an Intermediate Court to review the decision of the trial court, a defendant must follow certain rules. An experienced criminal appeals attorney will be able to navigate these rules to ensure a successful review of the decision.

There are two types of appeal in New York:

• Appeal as of Right — A defendant may take an appeal as of right from the judgment of conviction or from the sentence imposed.
• Permissive Appeal — If the defendant entered a plea of guilty and the sentence imposed was not greater than that agreed to by the defendant, the defendant may not appeal as of right but must seek leave to appeal or challenge the judgment or sentence some other way. Permissive appeals include appeals of a denial of a motion to vacate a judgment or to set aside a sentence or an appeal of a sentence that is otherwise not appealable as of right.

Stage 1: Filing the Notice of Appeal

Appeals as of Right

A notice of appeal is a document that must filed and served within 30 days after imposition of the sentence in the trial court. Two copies of the notice of appeal must be filed with the clerk of the criminal court in which the sentence was imposed. One copy of the notice of appeal must be served on the district attorney of the county in which the defendant was convicted.

Permissive Appeals

The request to make a permissive appeal must be filed within 30 days after service upon the defendant of the order sought to be appealed. Each appellate division of a department determines its own rules as to how an application for a certificate granting leave to appeal is to be made.

If the certificate for leave to appeal is granted, the defendant has 15 days to file the certificate granting leave together with a written notice of appeal with the criminal court where the order was rendered.

Stage 2: Perfecting the Appeal

As noted above, filing a notice of appeal is not the same as filing the appeal itself, which, in New York, is known as “perfecting the appeal.”

Each appellate division may set its own rules for the way an appeal is perfected. Such court rules include the time when the appeal must be noticed for and brought to argument, the content and form of the records and briefs to be served and filed, and the time when records and briefs must be served and filed.

An appeal taken to a county court or to an appellate term from a local criminal court is perfected by filing with the clerk of the appellate court a notice of argument, noticing the appeal for argument at the term of the court following the term being held.

Stage 3: Transcript Preparation

A defendant must also file a request and pay for the court reporter’s records. The clerk will compile official transcripts that document all evidence and testimony presented during the initial trial. The defendant and their appeal lawyer will review these materials to determine if the evidence presented in the original case was properly admitted and supported a conviction, if the court’s decisions were legally sound, and if there was any procedural defect. It is important to work with an experienced appeal lawyer who is familiar with New York criminal laws and court procedure because an appeal must identify the specific errors that occurred in the original case.

Stage 4: Defendant’s & Respondent’s Briefs

Following perfection of an appeal, the defendant may file a brief, or written argument, according to the rules of the court to which the appeal is taken. The brief will present a formal argument as to why the judgment or sentence should be reversed. This will include an analysis of the evidence presented at trial, the trial court’s rulings, where a mistake occurred, and the law that supports reversal.

The prosecution, also called the “Respondent,” will also have a chance to submit a brief. Their brief will argue that no error occurred, or that, if a mistake did happen, it did not influence the ultimate outcome in the case.

Stage 5: Oral Arguments

A criminal appeal may also involve oral arguments. If requested by the defendant and granted by the appellate court, oral arguments allow the defendant and their attorney to highlight the facts of the case, explain significant issues, and provide clarity to any legal or factual questions. The oral argument stage of the appeal is a critical time to persuade a judge or panel of judges, face to face, of the merits of the case. It is crucial to have an attorney with an extensive background in making appellate arguments at this stage.

Stage 6: Judgment of the Reviewing Court

Following oral argument, if any, the reviewing court will issue an opinion on the merits of the appeal. The court may reverse the conviction and send the case back for retrial or, less likely, discharge the defendant. It may also vacate a sentence and send the case back for resentencing or resentence the defendant on its own.

Writ of Habeas Corpus in New York

What Is a Writ of Habeas Corpus?

A writ is a petition to the court to enforce fundamental rights as stated in the law or constitution of New York or of the United States. A writ of habeas corpus asks a court to determine if imprisonment of an inmate is lawful. This type of writ is a powerful tool that may result in the termination of unlawful detention. However, a writ of habeas corpus has limitations that are best explained by an experienced New York appeals lawyer.

Who Can File a Writ of Habeas Corpus in New York?

The State of New York allows any person who has been illegally detained or imprisoned to file a writ of habeas corpus in the state courts. Filing a petition for a writ is considered a civil, not criminal, matter. The person detained or one acting on their behalf may petition without notice.

Grounds for a obtaining a writ of habeas corpus in New York include:

• An unlawful imprisonment
• The denial of bail
• Imposition of unreasonable bail
• Conditions of confinement that violate the New York or Unites States Constitution

Where to File a Writ of Habeas Corpus

The petition for a writ challenging imprisonment or detention must be made to:

• The supreme court in the judicial district in which the person is detained,
• The appellate division in the department in which the person is detained,
• Any justice of the supreme court,
• A county judge being or residing within the county in which the person is detained, but only if there is no other judge within the county capable of issuing the writ,
• A county judge being or residing within an adjoining county if all the judges within the county have refused the petition,
• The supreme court in the county in which the charge for which the inmate is being detained is pending if the city has a population of one million or more. The inmate may also petition (1) the appellate division in the department in which he is detained or to (2) any justice of the supreme court provided that the writ shall be made returnable before a justice of the supreme court in the county in which the charge for which the inmate is being detained is pending.

Determining where to file a writ of habeas corpus can be complex in New York. It’s best to work with a knowledgeable attorney who can guide you and handle the legal process for you.

Other Types of Writs

A writ is a legal remedy that is powerful enough to force lower-level courts or public officials to act or stop actions. They can facilitate the release of an inmate, order a new trial, and correct fundamental errors that were made in a case.

The writ of habeas corpus is commonly used in New York courts. Other common writs include:

• Writ of Mandamus — Telling the court to take a specified action
• Writ of Prohibition — Telling a court to refrain from a specified action
• Writ of Certiorari — Ordering a court to accept jurisdiction
• Writ of Error Coram Nobis — Raising a claim of ineffective assistance of appellate counsel

The purpose of each type of writ and the method for petitioning for one are complex and require the work of a lawyer knowledgeable in the laws of New York.