Mark A. Marino, Esq. 212-748-9552
DIRECT APPEAL OF A CRIMINAL CONVICTION IN NEW YORK
The post conviction option that most people are familiar with is the appeal taken directly after a trial or a guilty plea. This kind of appeal is referred to as a direct appeal. In order to take a direct appeal, the convicted person's attorney must properly draft, file with the appropriate clerk, and serve on the prosecutor a notice of appeal. The notice of appeal must be properly processed. If it is not, the defendant may lose his right to appeal his or her case.
Direct appeals are available in both the state and federal system. In a direct appeal, a defendant is only allowed to argue issues that are on the record. An issue is on the record if it was raised in the trial court. For example, if a trial lawyer objected to the introduction of certain evidence by the prosecutor during the course of the trial and the judge overruled the objection this would be an issue that is on the record.
THE 440 MOTION
If a defendant is convicted in a New York state court and wants to seek reversal of a conviction based on evidence that is not on the record, he must file a motion pursuant to New York Criminal Procedure Law Section 440.
Something is on the record if it appears in the transcript or if it was introduced into evidence at trial as an exhibit. If the facts relevant to a particular issue do not appear in the transcript or as part of an exhibit introduced into evidence, then the issue is off the record. For example, suppose that the defense attorney learns after the trial is over that the prosecutor withheld evidence from the defense. If the issue was not mentioned in the trial court then the issue would be off the record. As another example, assume that a witness previously unknown to the defense comes forward after the trial is completed and offers information beneficial to the defense. If the existence of this witness is not mentioned anywhere in the trial record, then the matter would be off the record and could only be raised by filing a 440 motion.
Some issues can be partially on the record and partially off the record. Such issues are referred to as hybrid issues and they can be litigated as part of a 440 motion. For example, assume that the trial attorney failed to object to the introduction of certain evidence which the defendant believes was harmful to him. The failure of the attorney to register the objection would be clear from the record. However, the trial attorney could have had a good reason for failing to object, but this reason would usually not be on the record. If the reason why the attorney failed to object is not on the record, then the claim that the attorney failed to object is a hybrid issue.
A 440 motion must be filed with the judge who presided over the trial. If the trial judge is no longer on the bench, then the defendant will have to contact the appropriate court clerk to determine what judge the motion should be presented to.
If that trial judge denies the motion, the defendant can ask the intermediate appellate court for permission to appeal that denial. Only if permission to appeal is first granted can the defendant appeal an adverse decision on a 440 motion made by the trial judge. This contrasts with a direct appeal where the defendant has an automatic right to appeal to the Appellate Division.
To appeal a trial court’s denial of a 440 motion, the defendant must file a motion with the appropriate appellate division requesting permission to appeal. This motion is referred to as a leave application. That motion must include a notice of motion, a supporting affirmation or affidavit and copies of all submissions sent to the trial court when the 440 motion was originally filed in that court. If that permission is granted, then the defendant must file a notice of appeal in the manner indicated in the criminal procedure law. The defendant may not file the notice of appeal until such time as permission to appeal is granted by the Appellate Division. There are very strict and short time limits for filing a leave application and any subsequent notice of appeal. If the leave application to the Appellate Division is denied, then the defendant may put in a further leave application to the New York Court of Appeals.
Affidavits will have to be drafted and submitted along with the 440 motion. Those affidavits will contain the off the record information that is relevant to the issue to be litigated. The appellate courts carefully scrutinize the contents of these affidavits and expect that they include certain information. If even one sentence or one word is either left out or misstated it can take a winning case and turn it into a losing case. The person drafting the 440 motion should have experience in handling this kind of litigation. Handling a direct appeal is very different from handling a 440 motion. A lawyer with extensive experience handling direct appeals may not have the knowledge or experience necessary to properly draft a 440 motion.
ERROR CORAM NOBIS
If a direct appeal is lost in a New York court you do not generally get a second chance to re-file that appeal. However, there is an exception to this rule. After the Appellate Division has made a decision adverse to the defendant on his or her initially filed appeal, the defendant can file with the Appellate Division what is referred to as a petition for a writ of error Coram Nobis. In this petition the defendant must give a reason why he should be allowed to file a new brief. The reason usually given in such petitions is that the initial appellate attorney was ineffective for failing to include a strong and meritorious argument in the brief that he submitted to the appellate court. If the petition is granted, then the defendant can proceed all over again with the filing of a new direct appeal.
FEDERAL HABEAS CORPUS
A defendant who does not prevail on his or her direct appeal in state court may thereafter file a petition for a writ of habeas corpus in Federal District Court. The time limits for filing such petitions are very short. Although there are exceptions, the general rule is that such petitions must be filed within one year of the date on which the New York Court of Appeals denied leave to appeal or one year from the date on which the New York Court of Appeals rendered a decision on the defendant’s case. There is some authority which indicates that this time period is actually one year and three months, but it is better to play it safe and presume that the statute of limitations is only one year. If the defendant took a direct appeal to the U.S. Supreme Court after being rejected by the New York Court of Appeals, then, as a general rule, the deadline for filing the habeas petition is one year from the date that the Supreme Court denied permission to appeal or one year from the date on which the Supreme Court rendered a decision on an appeal to that court. This statute of limitations period is also tolled for any period of time that a properly filed and properly constituted motion pursuant to CPL 440 or a New York state petition for a writ of error Coram Nobis is pending.
There are exceptions to the above statute of limitations, but many of those exceptions are very complex and judges often have difficulty comprehending them. Given the very short statute of limitations period that is involved in federal habeas litigation, the defendant would be well advised to start working on his or her federal habeas petition while his or her direct appeal in state court is still pending.
The jurisdiction of federal courts is limited to deciding federal issues. Federal courts will not address state issues. Federal issues in criminal cases usually come in the form of a claim that the defendant’s constitutional rights as enumerated in the Bill of Rights to the U.S. Constitution were violated. Therefore, since habeas petitions are filed in federal court, those petitions will only be considered to the extent that they allege a violation of the defendant’s federal constitutional rights. Furthermore, although federal courts are barred from adjudicating state issues, the reverse is not true. State courts are permitted to litigate federal constitutional issues. In fact, when a defendant raises a federal constitutional issue in state court, the state court is required to address that issue. Since state courts are required to address federal constitutional issues in the first instance, federal courts will not address a federal constitutional issue unless it was properly raised in the state court. Therefore, when a defendant is drafting his or her brief for an appeal to a state court, he must include all federal constitutional issues in his or her appellate brief that he plans on also raising in any possible future federal habeas petition. Furthermore, any leave application to the Court of Appeals must also properly reference those federal constitutional issues otherwise they will be procedurally rejected by the federal court which considers the habeas petition. In most circumstances, a leave application to the New York Court of Appeals must be filed in order for the defendant to preserve his or her right to file a petition for a writ of habeas corpus in Federal District Court. A leave application is a written request to the New York Court of Appeals requesting permission to appeal to that court.
A defendant may not include an argument in a federal habeas petition that references off the record facts unless the issue pertinent to those off the record facts was first raised by way of a CPL 440 motion filed in state court. Furthermore, that CPL 440 motion must reference the relevant federal constitutional right at issue in order for the defendant to preserve his or her right to raise that issue in a federal habeas petition. The defendant does not preserve a federal constitutional issue in a state court by simply making a general allegation that his or her federal constitutional rights have been violated. To properly preserve a federal issue in state court, the defendant must either reference the particular provision of the federal Bill of Rights that is pertinent to his or her case or reference federal case law that discusses how the issue in his or her case implicates a federal constitutional right. Preferably, the defendant should do both.
Mark A. Marino, PC
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