When appealing a criminal conviction in New York, one of the most important phases for the criminal appeals lawyer is to review the record of the lower court and identify the legal issues that will be raised on appeal.
The trial transcript is a written record of all proceedings in a trial, pre-trial hearings and any submissions made on motion in the trial court. Specifically, in a criminal appeal the trial record includes the minutes of pretrial hearings, the trial minutes and the sentencing minutes. Reviewing all of these records is extremely important when appealing a criminal conviction to determine which legal issues may be raised on appeal and which will yield the best results for the client. Typically, I will spend at least two to three weeks just reading the transcripts and intermittently doing legal research in a phase I call “issue spotting” or identifying the legal issues that I will be including in the legal brief when appealing a criminal conviction in New York.
During the “issue spotting” phase the criminal appeals lawyer must look for mistakes made by the judge, the prosecuting attorney, the defense attorney, and the jury. The actions of each one of these must be scrutinized for their legality. The criminal appeals lawyer must recognize any errors pertaining to a number of areas of the law including procedural, substantive, constitutional and evidentiary.
Once the legal issue is correctly identified the next phase of appealing a criminal conviction is to do extensive legal research of statutes and case law. This includes researching New York’s Criminal Procedure Law, the Penal Law, Constitutional Law, and of course case law. Case law is the review of past cases in New York’s Appellate Courts including the Appellate Divisions and the New York Court of Appeals. Research on Constitutional issues will involve research in the United States Supreme Court as well as the Appellate Courts in the Federal system known as the Circuit Courts of Appeal. Each case must be scrutinized for its legal applicability to my client’s criminal conviction to determine if the case will assist in our legal argument of a specific point of law.
When the record is sufficiently scrutinized and all legal issues are identified and the research is done, then the writing phase of the criminal appeal will begin. That will be part three of appealing a criminal conviction in New York.