Criminal Appeals

You lost at trial. You were pressured into a guilty plea you did not understand. Your loved one was just sentenced to prison time. Now what happens?

You may be able to appeal. The Law Office of Zachary Margulis-Ohnuma handles appeals involving charges of fraud, sex crimes, child pornography, and white-collar criminal cases in New York state and federal courts. We also handle carefully selected post-conviction cases, sometimes challenging wrongful convictions years or decades after the fact. While past results are no indication of future outcomes or outcomes in other cases, we have won appeals involving murder, sex offender registration, sexual assault, health care fraud, false confessions, prosecutorial misconduct, federal sentencing, prisoner sex abuse, and others. That means our clients were freed, their convictions were overturned, their sentence was reduced, they were granted a new trial, or their SORA level was lowered as a result of the appeal.

Direct Appeals. After losing a criminal trial, the defendant can file an appeal challenging the validity of the conviction. There are many grounds for a criminal appeal, ranging from technical violations of the rules of evidence to the wrongful denial of a suppression motion to an attack on the sufficiency of the evidence supporting the conviction.

However, in order to file an appeal it is essential to file a "notice of appeal" immediately after the judgment of conviction is entered, which is typically on the day of sentencing. If no notice of appeal is filed on time, the direct appeal will be automatically denied (there may be other remedies such as a claim of ineffective assistance of counsel for failure to timely file the notice of appeal). If you have recently been convicted or sentenced in a criminal case, you should direct your attorney, in writing, to file a notice of appeal without delay. There is no reason not to. Failure to file a notice of appeal means you will lose even before you get to court. Note that a criminal appeals lawyer typically will not agree to file a notice of appeal until he or she is retained, because the notice may commit the attorney to the hard work of "perfecting" the appeal, which means reviewing the transcript and filing briefs.

Once the notice of appeal is filed, the appellate attorney will go to work obtaining and reviewing the full trial record. In a guilty plea situation (as long as the appeal is not effectively waived), the record may be limited to motion papers in the court below and the plea minutes. After a trial, the record can be quite extensive, taking into account the full trial record including transcripts, exhibits and motions. In general, the more complicated the case in the trial court, the more complicated and difficult the appeal will be.

A criminal appeals attorney's review of the record begins by trying to spot issues for appeal. It is often best for a new attorney to look at a trial record; a lawyer new to the case may see things that the trial attorneys missed. Once the appeals lawyers have identified potential issues, they will hit the books and research the issues, looking for comparable fact patterns and cases that might help make an argument. The appeals lawyer should consider every argument carefully, often in close consultation with the client, but then focus on only the strongest arguments with the best chances of winning. Winnowing down the brief to a manageable set of well-argued points increases the chances of success with busy appellate judges. "Briefs" usually are not very brief -- they can be up to 13,000 words in the Second Circuit Court of Appeals, for example -- but must nonetheless be focused by capturing every relevant case and explaining how the cases apply to the unique facts at hand.

Most of the work on an appeal is done in connection with the "principal" or initial appellate brief. The appellant (i.e. the party appealing) will typically prepare and file an appendix along with the brief, which reprints in a convenient form the documents from the record that are relevant to the appeal. Printing costs can be substantial.

After the criminal appeals attorney files the opening bring and appendix, the prosecution has an opportunity to file an opposition brief and, if necessary, its own appendix. The appellant gets the last word, in the form of a "reply" brief with arguments answering the prosecutors' opposition to the appeal.

Oral Argument. Once all the briefs are filed, most appeals are set for oral argument at the courthouse before a panel of judges. In the federal courts like the Second Circuit Court of Appeals, the panels consist of three judges drawn at random from all the judges on the court. Oral arguments generally are allotted a total of twenty minutes, which is a very small amount of time to distill complex arguments that may have developed over years of litigation.

After oral argument, the panel will decide the case. You never know how long a decision will take -- it can come the following day or a year or more later. Most decisions are unanimous, but if a judge disagrees with the other judges on the panel, she may write a dissenting opinion.

Appealing the Appeal. The decision, which usually takes the form of a written "Memorandum and Order" or "Summary Order," ends the direct appeal. However, either side can usually ask to appeal to yet another, higher level appeals court, which can be the United States Supreme Court or the New York Court of Appeals, which is the highest stae court in New York. If review is granted at this level, the process repeats itself with briefs on both sides followed by oral argument.

If you are looking to appeal a criminal case, you need an attorney who is comfortable with the subject matter of criminal law and procedure and who is also comfortable with the intensive research and writing that goes into a successful appeal. You also need an attorney who will be honest with you about the likelihood of success, so that you can weigh the cost of appealing against the possible benefit.

Our office handles complex appeals raising novel issues. Please contact us for more information.