PRACTICE
I represent clients who have been convicted in New York State courts on appeal and in state and federal post-conviction proceedings as well as in related proceedings, for example, on motions to seal past convictions and in seeking parole.
Appeals
In New York, convicted defendants can appeal to the state’s intermediate appellate court, the Appellate Division. If that appeal fails, they may seek permission to appeal to the state’s highest court, the New York Court of Appeals.
An appeal can raise a wide range of issues, the main requirement being that the facts underlying the claim appear on the record. The record consists of the court file, all of the proceedings that took place in court, and any exhibits that were introduced.
An appeal is almost always the first step toward challenging one’s criminal conviction.
Post-conviction proceedings
One can also challenge a conviction in what are termed post-conviction proceedings. These consist of Criminal Procedure Law § 440.10 motions, writs of error coram nobis, and federal habeas corpus petitions.
As with appeals, under C.P.L. § 440.10, a defendant can seek to overturn a conviction on many different grounds, the difference being that one must proceed by 440.10 motion if essential facts supporting the claim do not appear on the direct-appeal record. One may provide evidence of these off-the-record facts by attaching affidavits and other documents, photographs, and videos. The court may also order a hearing to hear witnesses testify.
A defendant can also challenge an illegal or illegally-imposed sentence under C.P.L. § 440.20.
A defendant can also assert that his or her appellate lawyer provided inadequate representation via a writ of error coram nobis. A coram nobis is brought in the Appellate Division and relies on the direct-appeal record and the briefs that were filed.
Finally, if unsuccessful in state court, a prisoner or parolee can assert that his or her federal constitutional rights were violated in a habeas corpus petition brought in federal court.