Upstate New York Family Lawyer Blog

CHECKLIST FOR CRIMINAL APPEALS:

Step 80: 800.14(g): Where Only Sentence in Issue:
"When the sole question raised on appeal concerns the legality, propriety or excessiveness of the sentence imposed, the appeal may be heard upon a shortened record on appeal consisting of the notice of appeal, sentencing minutes and minutes of the plea, if appellant pleaded guilty. The record, which shall be clearly labeled "Record on Appeal from Sentence", shall contain a statement pursuant to CPLR 5531 and shall be stipulated to or settled in the manner provided in section 800.7(b) of this Part. The appeal shall be prosecuted, and may be scheduled for oral argument or submission, in the manner provided in subdivision (b) of this section. A copy of the presentence investigation report shall be filed with the clerk."

Step 81: 800.14(h): Expedited Criminal Appeal of Order Reducing Indictment or Dismissing Indictment and Directing Filing of Prosecutor's Information:
[For the most part, this step can almost always be skipped as it rarely pertains to most criminal appeals.]
Go to 800.14(i).

Continue reading "#263 So, You Say You Want To Know How To Perfect A Criminal Appeal?, Part 15 of 15" »

CHECKLIST FOR CRIMINAL APPEALS:

Step 73: 800.9(b): Respondent's Brief:
"After the record on appeal and appellant's brief, or brief and appendix, have been accepted for filing, the clerk shall mail to each respondent a scheduling memorandum which shall require respondent to serve and file respondent's brief within 45 days from the date of the memorandum or within such shorter time as the memorandum may direct."

"Each respondent shall file the same number of copies of respondent's brief as appellant shall have filed, with proof of service of two [2] copies upon each appellant."

"Upon any appeal in which an attorney for the child appears for a non-appellant child, the provisions of this subdivision regarding mailing of the scheduling memorandum and filing of respondent's brief shall also apply to include the attorney for the child." Go to 800.14(c).

Continue reading "#262 So, You Say You Want To Know How To Perfect A Criminal Appeal?, Part 14 of 15" »

CHECKLIST FOR CRIMINAL APPEALS:

Step 73: 800.9(b): Respondent's Brief:
"After the record on appeal and appellant's brief, or brief and appendix, have been accepted for filing, the clerk shall mail to each respondent a scheduling memorandum which shall require respondent to serve and file respondent's brief within 45 days from the date of the memorandum or within such shorter time as the memorandum may direct."

"Each respondent shall file the same number of copies of respondent's brief as appellant shall have filed, with proof of service of two [2] copies upon each appellant."

"Upon any appeal in which an attorney for the child appears for a non-appellant child, the provisions of this subdivision regarding mailing of the scheduling memorandum and filing of respondent's brief shall also apply to include the attorney for the child." Go to 800.14(c).

Continue reading "#255 So, You Say You Want To Know How To Perfect A Criminal Appeal?, Part 13 of 15" »

CHECKLIST FOR CRIMINAL APPEALS:

Step 63: CPLR 5528(b): Respondent's Brief and Appendix:
"(b) Respondent's brief and appendix."

"The brief of the respondent shall conform to the requirements of subdivision (a), except that a counterstatement of the questions involved or a counterstatement of the nature and facts of the case shall be included only if the respondent disagrees with the statement of the appellant and the appendix shall contain only such additional parts of the record as are necessary to consider the questions involved."

Step 64: CPLR 5528(c): Appellant's Reply Brief and Appendix:
"(c) Appellant's reply brief and appendix."

"Any reply brief of the appellant shall conform to the requirements of subdivision (a) without repetition."

Continue reading "#254 So, You Say You Want To Know How To Perfect A Criminal Appeal?, Part 12 of 15" »

CHECKLIST FOR CRIMINAL APPEALS:

Step 56: 800.4(c): Appeals by Indigent Parties:
"An appeal in a criminal case, or in a civil case by a person who has been granted permission by this court to proceed as a poor person, may be prosecuted by the appendix method authorized by subdivision (b) of this section."

"Appellant shall file seven [7] copies of a typewritten brief and appendix with proof of service of one [1] copy upon each adversary."

"Respondent may likewise file seven [7] copies of a brief with proof of service of one [1] copy upon each adversary."

"The clerk of the court from which the appeal is taken, after service upon him of a copy of the decision of this court, shall furnish without charge to a person granted permission to proceed as a poor person one [1] copy of the stenographic transcript of trial or hearing minutes and one [1] copy of any other paper or document on file in his office which is material and relevant to the appeal."

"In criminal and family court cases, the court may, where such is necessary for perfection of the appeal, direct the clerk of the court to send a copy of the stenographic transcript of trial or hearing minutes on file in his office to the clerk of this court, who shall attach it to the single copy record [on appeal] upon which the appeal shall be prosecuted." Go back to 800.14(a).

Continue reading "#252 So, You Say You Want To Know How To Perfect A Criminal Appeal?, Part 11 of 15" »

CHECKLIST FOR CRIMINAL APPEALS:

Step 50: CPLR 5529(e): Citations of Decisions:
"(e) Citations of decisions."

"New York decisions shall be cited from the official reports, if any."

"All other decisions shall be cited from the official reports, if any, and also from the National Reporter System if they are there reported."

"Decisions not reported officially or in the National Reporter System shall be cited from the most available source."

Step 51: CPLR 5529(f): Questions and Answers:
"(f) Questions and answers."

"The answer to a question in the appendix shall not begin a new paragraph." Go back to 800.8(b).

Continue reading "#250 So, You Say You Want To Know How To Perfect A Criminal Appeal?, Part 10 of 15" »

CHECKLIST FOR CRIMINAL APPEALS:

Step 42: 800.4(b): Appendix Method:
"... with proof of service of a copy upon each adverse party or, in lieu thereof, appellant may file with the clerk proof of service of a notice upon each adverse party that the single copy of the record [on appeal] has been filed in the office of the clerk of this court."

"In the alternative, when serving appellant's brief, appellant may serve the single copy of the record [on appeal] upon respondent and shall so state in an affidavit of service."

"A respondent upon whom the single copy of the record [on appeal] has been served shall file the record [on appeal] with the clerk of this court within 30 days from the date of its service upon him."

"When there are two [2] or more adverse parties, appellant shall obtain instructions from the clerk for use of a single record [on appeal] by respondents and its filing with the clerk."

"Appellant's or petitioner's brief shall contain an appendix in compliance with section 800.8(b) of this Part." Go to 800.8(b).

Continue reading "#248 So, You Say You Want To Know How To Perfect A Criminal Appeal?, Part 9 of 15" »

CHECKLIST FOR CRIMINAL APPEALS:

Step 33: 800.7(a)(1): Certification of Record:
"(a) Reproduced Full Record [on Appeal]."

"A reproduced full record [on appeal] shall be certified either by:
(1) a certificate of appellant's or petitioner's attorney pursuant to CPLR 2105; ..." Go to CPLR 2105.

Step 34: CPLR 2105: Certification by Attorney:
"Where a certified copy of a paper is required by law, an attorney admitted to practice in the courts of the state may certify that it has been compared by him with the original and found to be a true and complete copy."

"Such certificate, when subscribed by an attorney, has the same effect as if made by a clerk." Go back to 800.7(a)(2).

Continue reading "#246 So, You Say You Want To Know How To Perfect A Criminal Appeal?, Part 8 of 15" »

CHECKLIST FOR CRIMINAL APPEALS:

Step 28: CPLR 5525(c)(1): Proposed Amendments to Transcript:
"1. Within fifteen [15] days after receiving the transcript from the court reporter or from any other source, the appellant shall make any proposed amendments and serve them and a copy of the transcript upon the respondent."

"Within fifteen [15] days after such service the respondent shall make any proposed amendments or objections to the proposed amendments of the appellant and serve them upon the appellant."

"At any time thereafter and on at least four [4] days' notice to the adverse party, the transcript and the proposed amendments and objections thereto shall be submitted for settlement to the judge or referee before whom the proceedings were had if the parties cannot agree on the amendments to the transcript."

"The original of the transcript shall be corrected by the appellant in accordance with the agreement of the parties or the direction of the court and its correctness shall be certified thereon by the parties of the judge or referee before whom the proceedings were had."

"When he serves his brief upon the respondent the appellant shall also serve a conformed copy of the transcript or deposit it in the office of the clerk of the court of original instance who shall make it available to respondent."

Continue reading "#245 So, You Say You Want To Know How To Perfect A Criminal Appeal?, Part 7 of 15" »

CHECKLIST FOR CRIMINAL APPEALS:

Step 15: 800.5(a)(2): Table of Contents [of Record on Appeal]:
(2) a table of contents which shall list and briefly describe each paper included in the record [on appeal], each witness' testimony and each transcript."

"The part relating to a transcript of testimony shall separately state as to each witness the page at which the direct, cross, redirect and recross examination begins."

"The part relating to exhibits shall briefly describe each exhibit and shall indicate the page where offered or admitted in evidence and whether the exhibit has been omitted from the record;

Step 16: 800.5(a)(3): Statement Pursuant to CPLR 5531:
(3) a statement pursuant to CPLR 5531; ..." Go to CPLR 5531.

Continue reading "#244 So, You Say You Want To Know How To Perfect A Criminal Appeal?, Part 6 of 15" »

CHECKLIST FOR CRIMINAL APPEALS:

Step 9: 800.5: Record on Appeal or Review:
(a). Form and Content:
"A record on appeal or record on review shall be on good quality, white, unglazed paper and shall comply with CPLR 5526 as to size and form." Go to CPLR 5526.

Step 10: CPLR 5526: Content and Form of Record on Appeal:
"The record on appeal from a final judgment shall consist of the notice of appeal, the judgment-roll, the corrected transcript of the proceedings or a statement pursuant to subdivision (d) of rule 5525 if a trial or hearing was held, ... Go to CPLR 5525(d).

Step 11: CPLR 5525(d): Statement in Lieu of Transcript:
"Statement in lieu of stenographic transcript."

"Where no stenographic record of the proceedings is made, the appellant, within ten [10] days after taking his appeal, shall prepare and serve upon the respondent a statement of the proceedings from the best available sources, including his recollection, for use instead of a transcript."

"The respondent may serve upon the appellant objections or proposed amendments to the statement within ten [10] days after such service."

"The statement, with objections or proposed amendments, shall be submitted for settlement to the judge or referee before whom the proceedings were had." Go back to CPLR 5526.

Continue reading "#243 So, You Say You Want To Know How To Perfect A Criminal Appeal?, Part 5 of 15" »

CHECKLIST FOR CRIMINAL APPEALS:

Start at CPL 460.10(1):

Step 1: CPL 460.10(1): Appeal; How Taken:
"Except as provided in subdivisions two and three, an appeal taken as of right to an intermediate appellate court or directly to the court of appeals from a judgment of a criminal court is taken as follows: ..." Go to CPL 460.10(1)(a).

Step 2: CPL 460.10(1)(a): A Party Seeking to Appeal:
"A party seeking to appeal from a judgment or a sentence or an order and sentence included within such judgment, or from a resentence, or from an order of a criminal court not included in a judgment, must, within thirty days after service upon such party of a copy of an order not included in a judgment, file with the clerk of the criminal court in which such sentence was imposed or in which such order was entered a written notice of appeal, in duplicate, stating that such party appeals therefrom to a designated appellate court." Go to CPL 460.10(1)(b).

Continue reading "#241 So, You Say You Want To Know How To Perfect A Criminal Appeal?, Part 4 of 15" »

And now, a special disclaimer: these are my steps. They are not specifically set forth in any other source of which I am aware (other than the sources upon which I rely - which are the rules and statutes themselves). I've put them together after perfecting many criminal appeals. Some may find certain steps missing or some that are overindulged in. However, this is just a starting point. You can get creative after a while, so long as you keep in mind what is mandated by the various rules and statutes. In fact, if you are to become efficient, after you have become proficient, it is expected that you will craft your own, personally-tailored series of steps for the perfecting of criminal appeals.

Once you have a feel for what all the steps are, only then should you feel free to take them out of order, and rearrange them, tailoring them to your own efficiencies and proficiencies.

So, the next question: do you need to "know this stuff cold"? Well, you certainly need to know most of it cold and, let's face it, your first few appeals will probably be painful learning experiences. However, once you get the "feel for appeals" it becomes much easier. In fact, believe it or not, a huge chunk of what you do in your first criminal appeal can be copied wholesale (especially the essential forms), with a few revisions, for your next appeal, so you do not have to keep "reinventing the wheel." Therefore, while you may not need to know this stuff cold - and probably won't the first time - it really does help you to get the criminal appeal done right the first time - so that you don't have to unlearn things that don't really apply.

Have fun discovering and exploring!

Continue reading "#212 So, You Say You Want To Know How To Perfect A Criminal Appeal?, Part 3 of 15" »

Before you start this potentially daunting task of learning how to perfect a criminal appeal, it is probably best to figure out where to start and how to proceed from Step 1. The answer is simple: follow the numbers.

And, when you "follow the numbers", do yourself the favor of completing the entirety of the rule or statute before you return to or go to another rule or statute - unless you stumble upon a rule or statute number that immediately directs you to go to someplace else. Got it? In fact, you should "leave a trail" so that you don't get lost amidst the thicket of numbers and miss a step or two. Before long, you will discover these steps to be more like finding your way around and out of a maze than anything else. And, for the first few times that you will do it, that is exactly what it will feel like.

Also, for the sake of all you purists, I am specifically omitting those aspects of the Criminal Procedure Law relating to appeals, namely Articles 450, 460, and 470. Obviously, these statutes are instructive, but they are not necessarily essential for a basic knowledge of the appellate process for criminal appeals. Just as obviously, the more criminal appeals one perfects, the more well-advised it would be for one to be quite familiar with Articles 450, 460, and 470 of the Criminal Procedure Law and their interplay with the steps set forth herein.

Continue reading "#211 So, You Say You Want To Know How To Perfect A Criminal Appeal?, Part 2 of 15" »

So, you say you want to know how to perfect a criminal appeal? Are you sure? Well, good luck with that. Because you really should be careful what you ask for. Scared yet?

The reality of the situation is that perfecting criminal appeals is actually easy - once you are able to navigate the incredibly complicated rules pertaining to them. This series will introduce you to how one actually goes about perfecting a criminal appeal, from the filing of the notice of appeal to the service on the client of the decision and order of the Court of Appeals not to accept the appeal from the Appellate Division (as they almost never accept appeals, except in rare circumstances), with notice of entry.

I actually enjoy the complexity of appellate work as I find it intellectually stimulating. Another great aspect of the work is that it tends to reward creativity; thinking "outside the box". Also, it goes without saying, that the more appeals you are able to perfect, the better you become at perfecting appeals; one becomes both more efficient and more proficient in the appellate process, the more work one does. In fact, the byzantine statutes and court rules which pertain to the entire process are so precise (and very often duplicative), that one is left with clear directives as to what shall be done in the perfection of a criminal appeal.

Continue reading "#210 So, You Say You Want To Know How To Perfect A Criminal Appeal?, Part 1 of 15" »