Kushner | Law Group PLLC
Kushner | Law Group PLLC
Kushner | Law Group PLLC

Vigorous Advocates Fighting For Your Rights

We Stand By You Through Appeals And Post-Conviction Relief

The Kushner Law Group, PLLC, understands the struggles an individual faces when trying to prove their innocence against criminal charges both in state and federal courts. In instances where the defendant has pleaded guilty or is found guilty by the courts, the challenges become even harder. But a conviction is not the end of the line. Read on to learn how the Kushner Law Group can help you with New York appeals and post-conviction relief.

Depending on the circumstances and in limited situations potentially impacting an appeal, the defendant may seek to appeal the conviction and seek post-conviction relief. Call the Kushner Law Group to understand your rights and whether the circumstances of your particular case warrant the filing of an appeal or post-conviction relief.

How An Appeal Works

Appealing a conviction is only one of several avenues a defendant can pursue in order to have the court re-hear a defendant’s case. In the appeals process, the appellate court will focus on the potential procedural and legal errors that may have occurred during the criminal trial. Differing from federal courts, in New York, the defendant has 30 days from the date of sentencing to file an appeal. In some circumstances, the judge may allow the defendant to file an appeal after the 30-day deadline.

In most cases, a successful appeal doesn’t mean the case has been dismissed. It usually means the defendant’s case will be returned to the trial court for a new trial. Thus, the new trial is a way to re-hear the case without the procedural error that was found to have adversely affected the outcome of the original trial.

In very rare and limited circumstances, a criminal conviction is reversed based on insufficient evidence. This may occur when the appellate court determines that no rational jury could have convicted the defendant based on the evidence presented at trial. In this situation, the case is not retried or dismissed.

These types of reversals are very rare, but they do occur in less than one percent of cases that are appealed. In the event that the criminal case is not successful on appeal, the next step is to petition the New York State Court of Appeals and then the United States Supreme Court to hear the case. However, it is very difficult and rare for cases to be accepted by these two forums.

There are other avenues to pursue, even after an unsuccessful appeal. If a criminal defendant’s constitutional right was violated at the trial, then a federal writ of habeas corpus may be available, or if there is newly discovered evidence that wasn’t available at the first trial, a defendant may be able to file a 440 motion to obtain a new trial.

What Happens If You Lose The Appeal?

In addition, if the defendant loses at the appellate division, the court may give the defendant a second opportunity to argue the appeal. This is allowed if it can be shown that the first appellate attorney made serious mistakes on the appellate brief.

In order to initiate this process, the defendants’ second criminal appeals lawyer should file a “petition for a writ of error coram nobis.” If the writ is granted, then the second appellate attorney can submit a new appellate brief and reargue the appeal before the appellate court. The appeals and post-conviction relief process is a difficult and challenging process.

Experienced in both state and federal courts, the Kushner Law Group, PLLC, is ready to meet with you in order to go over the case to see if we can help you through the appeals and post-conviction process.

How A 440 Motion Vacating A Criminal Judgment Works

New York State’s Criminal Procedure Law 440 gives individuals convicted of crimes the ability to motion the court to have their judgments vacated. The 440 motion can be filed at any time after the entry of judgment to the criminal court that entered that judgment. In addition, the motion can be filed even while the individual is still incarcerated and also after serving the conviction.

The Kushner Law Group, PLLC, has years of experience in filing these motions, and we are here to guide you through the process. Please read on for more information about the 440 motion.

The 440 motion can be a useful tool for vacating a criminal judgment. The 440 motion is not a standard appeal of a judgment from the lower court’s verdict. In a standard appeal, facts and evidence presented for the first time cannot be considered by the court. A distinguishing factor of the 440 motion is that it allows defendants the opportunity to present new facts outside of the trial court’s record.

If the motion is granted, the court will then vacate the judgment, dismiss the accusatory instrument, order a new trial or may take other action that is commiserate with the circumstances. It is important to note that the 440 motion is a difficult process unless the individual’s circumstances fall into one of the below categories. They are:

  • The court did not have jurisdiction over the action or the person of the defendant.
  • The judgment was procured by duress, misrepresentation or fraud on the part of the court or a prosecutor or a person acting for or on behalf of a court or a prosecutor.
  • Material evidence adduced at a trial resulting in the judgment was false and was, prior to the entry of the judgment, known by the prosecutor or by the court to be false.
  • Material evidence adduced by the people at a trial resulting in the judgment was procured in violation of the defendant’s rights under the constitution of this state or of the United States.
  • During the proceedings resulting in the judgment, the defendant, by reason of mental disease or defect, was incapable of understanding or participating in such proceedings.
  • Improper and prejudicial conduct not appearing in the record occurred during a trial, resulting in the judgment which conduct, if it had appeared in the record, would have required a reversal of the judgment upon an appeal therefrom.
  • New evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial, the verdict would have been more favorable to the defendant, provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence.
  • The judgment was obtained in violation of a right of the defendant under the New York Constitution or of the United States.

In addition, if the motion is granted based on newly discovered evidence that, if it had been produced at the original trial, would have created a more favorable outcome for the defendant, then the court would:

  • Vacate the judgment and order a new trial.
  • Modify the judgment to a lesser offense. This would need the consent of the district attorney’s office.

The standard for granting a 440 motion is a difficult one. However, it is not insurmountable.

Frequently Asked Questions

Questions surrounding the criminal appeal and post-conviction process. Those include:

How long do I have to appeal?

In the New York courts, individuals have 30 days to file a Notice of Appeal from sentencing dates. Federal courts generally allow for 14 days from the date of judgment.

How long does it take to pursue an appeal?

While each case differs, appellate courts issue decisions within 12 to 15 months following sentencing.

If the first appeal is denied, can I pursue another?

While exceptions exist in post-conviction relief, individuals usually only have one chance.

What is the role an attorney plays?

Arguments that cover possible errors made at trial or by the judge are usually expressed orally and in writing. These initial briefs are typically complex and lengthy.

The Kushner Law Group Can Help

Our criminal defense attorneys have years of experience handling these types of issues. If you feel that you may be a good candidate for filing this motion or if you have questions as to whether you may have a good chance of successfully filing a 440 motion, then email or call the Kushner Law Group at 718-838-9341. We will help you through the process.