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Appeals

Appeals Bureau attorneys provide New York’s appellate courts and all federal courts with in-depth written and oral analyses of legal and factual issues arising in a full range of criminal prosecutions, ensuring that properly-obtained convictions are upheld and that no defect in the trial-level proceedings unduly affects either the public or the accused.  Our attorneys excel in the specialized research and advocacy skills demanded by the most highly respected appellate courts in the nation, appearing regularly in the New York Court of Appeals, the U.S. Court of Appeals for the Second Circuit, and, occasionally, the U.S. Supreme Court.

Under New York law, every convicted defendant has a right to an appeal, at which he may seek to have the conviction overturned based on some legal error or other defect in the trial court proceedings.  Once the defendant has identified the grounds upon which he wishes to challenge his conviction or sentence, a member of the Appeals Bureau thoroughly reviews both the proceedings in the trial court and the relevant legal authorities, submits a brief to the appellate court, and then argues the appeal, typically before a panel of five judges.  The loser of the first round of appellate litigation usually seeks to take the case to the highest court in New York, the Court of Appeals.  On occasion, a case in which the legal issues implicate the U.S. Constitution or other federal laws makes its way to the U.S. Supreme Court.

Our appellate practice extends to many other types of proceedings.  For example, Appeals Bureau attorneys represent New York in federal courts at all levels in responding to habeas corpus petitions. Our attorneys also represent the People in New York’s appellate courts in response to collateral attacks on convictions under state law.  We initiate appeals when trial-level courts dismiss charges or suppress evidence in the absence of valid legal grounds for doing so.  And, because of the appellate courts’ high regard for our work, organizations that wish to share their views with appellate courts as amici curiae often call upon our attorneys to prepare submis­sions in important cases in which we would not otherwise be involved.

Finally, although most of our effort is devoted to defending criminal convictions against attempts to overturn them, we are always mindful of the prosecutor’s duty to advance the cause of justice.  Thus, where it appears that the defendant has been unfairly prejudiced by some error in the proceed­ings leading to his conviction, the Appeals Bureau forthrightly acknowledges the defect and advocates a remedy that will effectively redress it without unduly harming the public.

Notable Cases

People v. Tolentino, 14 N.Y.3d 382 (2010) (cert. granted, 131 S. Ct. 595)Open

The defendant was driving in Manhattan when the police pulled him over for playing music too loudly.  The officers learned the defendant’s identity, and a check of his driving record revealed that he had a suspended license.  Charged with unlicensed driving, the defendant claimed that the police had violated his Fourth Amendment rights in stopping his car, and he asked the court to prohibit the use of the driving record examined during the stop at his trial.  The judge ruled that, regardless of whether the stop had been illegal, the defendant’s driving record was not subject to exclusion as a “fruit” of the stop.  The New York appellate courts agreed, with the Court of Appeals ruling that no evidence should be suppressed if an illegal stop results only in the discovery of a person’s identity, which in turn leads only to retrieval of information the authorities had lawfully possessed before the stop occurred.   The Supreme Court has granted the defendant permission to appeal his Fourth Amendment claim to that court, and Appeals Bureau attorneys are preparing the case for a hearing in Spring 2011.

Mannix v. Phillips, 619 F.3d 187 (2d Cir. 2010)Open

The defendant was convicted of depraved indifference murder following a barroom shooting.  He sought a writ of habeas corpus in federal court based on a claim that New York’s depraved indifference murder statute was unconstitutionally vague.  The Appeals Bureau defended the conviction in both the federal District Court and the Second Circuit, both of which upheld the conviction and the  constitutionality of the state law.

People v. Frazier, 2010 WL 5070771 (N.Y. Court of Appeals)Open

The defendant was convicted of burglary for breaking into two apartments and larceny for stealing thousands of dollars worth of property during those break-ins.  The trial judge ran the sentences on the larceny convictions consecutively to those on the burglaries.  On appeal, the Appellate Division held that since the intent to steal property was an element of both the burglaries and the larcenies those sentences had to run concurrently, resulting in a reduction of the defendant’s prison term.  An Appeals Bureau attorney took the case to the Court of Appeals, which reversed the Appellate Division and held that consecutive sentences are lawful for crimes that involve different acts, even if the defendant’s intent in committing those acts was the same.  The court restored the sentence the trial judge had found to be just.

Portalatin v. Graham, 624 F.3d 69 (2d Cir. 2010)Open

Several serious repeat offenders, including one who had been convicted in New York County, filed habeas corpus petitions in which they claimed that the New York law authorizing longer sentences for repeat offenders called for improper fact-finding by sentencing judges and was therefore unconstitutional.  After the federal district courts rendered conflicting rulings, the appeals to the Second Circuit were heard together, and an Appeals Bureau attorney argued the case from New York County.  A panel of three Second Circuit judges adopted our position that the New York County defendant could not be granted habeas corpus for procedural reasons, but in the other cases the panel ruled that the New York law was unconstitutional.  The court subsequently decided that the unconstitutionality ruling should be reconsidered by all twelve of its judges.  Although the New York County conviction was no longer at issue, our Appeals Bureau was asked to prepare a brief to be submitted by the District Attorneys’ Association of the State of New York as amicus curiae.  Consistent with our position in that brief, the full Second Circuit rejected the opinion of the three-judge panel and upheld the constitutionality of the New York sentencing law.

People v. McBride, 14 N.Y.3d 440 (2010)Open

Three days after a witness to an armed robbery identified the defendant as the gunman, several police officers went to the defendant’s home to look for him.  Although they could hear voices coming from inside the defendant’s apartment as they approached the door, and someone responded when they buzzed the defendant’s intercom, nobody answered their repeated knocks.  A detective and her partner went onto the fire escape and, looking into the apartment through a window, they saw a man lying on the floor.  They knocked on the window and identified themselves, and soon a woman opened the door, crying and hyperventilating.  The officers asked the woman, “Is everything all right?”, but she was unresponsive, so they entered the apartment to see whether she was under some threat.  They found the defendant inside and arrested him for the robbery.  After his conviction, the defendant claimed on appeal that the officers’ entry into his home was unlawful, because they had not obtained a warrant; he argued that the apparent emergency the officers encountered was of their own making.  An Appeals Bureau attorney argued the case before the New York Court of Appeals, which found that the officers’ conduct was reasonable under the circumstances and affirmed the conviction.