How to File an Appeal of a Conviction in New York State and Federal Court: A Comprehensive Guide

If you or a loved one has been convicted of a crime, filing an appeal may be an option to challenge the conviction. Both guilty pleas and trial convictions can be appealed. In New York State, there are two primary types of post-conviction appeals: direct appeals and appeals related to a 440 motion. 

This guide will help you understand the process of filing an appeal, key deadlines, and the importance of these actions, especially for non-citizens who may face deportation.

Types of Appeals in New York State: Direct Appeal vs. 440 Motion Appeal

1. Direct Appeal 
   A direct appeal involves several steps:

• Step 1: Filing the Notice of Appeal – You must file the notice within 30 days of the sentencing.
• Step 2: Filing the Record on Appeal – This includes documentation from your trial or guilty plea.
• Step 3: Filing the Appeal Brief – The brief outlines your legal arguments for why the conviction should be overturned.
• Step 4: Oral Argument – A hearing in which your attorney presents your case to the appellate court.
• Filing a Motion for a Certificate of Leave to Appeal – This is a request for permission from the appellate court to appeal the motion. In other words, you need judicial approval before proceeding with the appeal.

2. Appeal of a 440 Motion 
An appeal of a 440 motion involves one additional step:

While filing a direct appeal, defendants may also file a 440 motion to raise issues that are not present in the trial record. If the 440 motion is denied, defendants can seek permission to appeal that denial and request the consolidation of both appeals.

Importance of Filing a Notice of Appeal

Filing a notice of appeal is crucial, particularly for non-citizens who may face deportation due to their conviction. A direct appeal temporarily halts deportation proceedings that are based solely on a criminal conviction. This is because, legally, a conviction is only considered "final" when the direct appeal process is complete.

For both citizens and non-citizens, the notice of appeal is essential in raising legal errors in the trial or sentencing process. It must be filed within 30 days of sentencing in New York. If the 30-day period has passed, it is possible to file a late notice of appeal, though the defendant must show good cause for the delay.

Late Notice of Appeal: What You Need to Know

In New York, a late notice of appeal can be filed if the original deadline is missed, but only within one year of the original filing deadline. To succeed, the defendant must show that the delay was due to a violation of their rights or misconduct by a public servant or attorney.

In rare cases, a writ of error coram nobis can be filed after the one-year period to challenge the failure to file a timely appeal.

In federal court, the deadline to file a notice of appeal is 14 days after judgment. If the government files its own notice of appeal, the defendant has 14 days after that to file theirs. A judge may grant an extension of up to 30 days for filing, but this must be based on excusable neglect or good cause. If the deadline has passed, a defendant may file a habeas corpus motion to vacate the conviction, citing the failure to file an appeal as a violation of their constitutional rights.

Why Filing an Appeal is Critical for Immigrants Facing Deportation

For immigrants, filing an appeal is especially important because it can affect deportation proceedings. In cases where a conviction could lead to removal from the United States, the appeal process can delay or halt deportation until a final decision is made.

In certain cases, if a defendant is seeking a shorter sentence to avoid deportation, the appeal may also provide an opportunity to challenge the length of the sentence. Post-conviction relief may result in a reduced sentence, which could help avoid immigration consequences.

At Cohen Forman Barone, our experienced legal team is here to help you navigate the complexities of the appeal process, whether you are appealing a conviction, challenging errors in your trial, or seeking post-conviction relief.

If you are considering an appeal of your conviction, it's essential to act quickly and consult with an experienced appeals lawyer, to ensure that you meet all necessary deadlines and increase the likelihood of a successful appeal. For immigrants, timely action is critical to prevent deportation and secure the best possible outcome.

To get started with a comprehensive case evaluation, call (212) 577-9314 or contact us online.