APPELLATE REPRESENTATION
We are appellate lawyers, regularly filing appeals both in New York State appellate courts and also in the federal courts of appeal throughout the country. Most of our appellate work concerns appeals from criminal convictions (for example, United States v. Lauria, 70 F.4th 106 (2d Cir. 2023)), but we also provide appellate representation in select civil matters (for example, Doe 107 v. Giuffre, No. 22-3042, 2023 WL 4926195 (2d Cir. 2023)). Levitt & Kaizer partner Richard Levitt is the author of the Second Circuit Criminal Law Source Book, an 1800-page outline of Second Circuit criminal law:
OUR APPROACH TO APPEALS
Appellate practice is specialized and requires considerable expertise. Although any reasonably competent lawyer can put together an appeal that reads well, the difference between winning and losing an appeal often requires not only good research and writing skills but also the ability to recognize issues in the record and separate potential winning arguments from those having little or no chance of success. Because the large majority of criminal convictions are affirmed on appeal it is reasonable to view the appellate process as a conveyor belt leading from the filing of the notice of appeal to a decision upholding conviction. And so the job of an appellate lawyer is to pull the appeal off that conveyor belt. Of course, those who know appellate practice also understand that, unfortunately, what often separates winning and losing are the judges assigned to the appeal, because some judges are far more likely than others to be evenhanded in adjudicating criminal appeals. Even the best appellate lawyers have no control over which judges will hear a particular appeal.
WHEN DOES APPELLATE REPRESENTATION BEGIN?
In a perfect world appellate representation begins before conviction because issues that are not properly “preserved” by motion or objection in the lower courts are much less likely to prevail in appellate court, since “unpreserved” issues are subject to a more stringent standard of “reversibility” knowns as “plain error review.” And so, in the more significant cases where clients have the means, securing the presence of a skilled appellate lawyer during the trial proceedings is strongly recommended. Appellate counsel “protect the record” both by assuring that appropriate motions and objections are made and also that they are made correctly. Of course, the preference is that there be no appeal because the client, if tried, is acquitted, and a good appellate lawyer can give the trial team an edge by assuring the trial is fair and that evidentiary and other rulings are made in the client’s favor.
If, however, a judgment of conviction and sentence are entered and a notice of appeal is filed, the appeal formally begins. Different rules apply in the state and federal courts and whereas most of the federal circuit courts of appeal follow uniform rules established by the Federal Rules of Appellate Procedure (as augmented by Local Rules), New York State court appellate rules differ substantially from one Appellate Division to another (there are four Appellate Divisions in total), and many lawyers have gotten tripped up assuming the rules of one Appellate Division court apply to the others.
THE BRIEF WRITING PROCESS
When we are first consulted about an appeal we obtain a high-level overview of the proceedings in the lower court, obtaining the prospective client’s take on what occurred there, as well as the impressions of prior counsel. We’ll review the docket to see what motions were filed and what opinions were rendered and determine whether we need to order any transcripts of court proceedings. We then read anything of possible relevance to the appeal, including pretrial filings, the trial transcript (if there was a trial), the post-conviction proceedings and the sentencing-related documents and transcript. We take notes along the way and keep track of possible issues. We then prepare a preliminary list of issues and, if necessary, conduct initial research to determine which issues should be included in the brief. If in doubt we will sometimes draft a particular point to see how it “reads.” It’s important to note, however, that appeals are heard on the “cold record,” that is, we can only raise issues that can be decided from the papers filed and the proceedings conducted, in the lower court. The appellate court will not receive or otherwise consider “new” evidence. Throughout this process we maintain communication with the client and provide the client a draft of the brief for review and comment before we finalize and file.
Depending on the complexity and length of the proceedings presented in the lower court and the issues available for appellate review, drafting the appellate brief can take days, weeks, or months. Different courts have time limits for filing briefs as well as page limits for briefs and we typically go through several drafts before filing. In our offices one partner takes primary responsibility for the brief but a second is also deeply involved, assisting in the drafting, reviewing, and editing process. A third partner will review the near-final brief and suggest last-minute edits.
When writing a brief to a state appellate court following conviction, an appellate attorney must always keep in mind the possible, later filing of a petitioner for habeas corpus in federal district court. Issues raised in such proceedings typically must allege the violation of a federal constitutional right by the state court and a showing that the state court had an opportunity to address the issue. Therefore, it is incumbent on appellate counsel in state court to “federalize” the issues raised – both at the lower court and appellate court levels—thereby permitting the state courts to address the federal constitutional issue. Failure to do so will, in nearly all cases, preclude federal habeas corpus review.
After our brief is filed the prosecution files its brief in opposition and we thereafter file a reply brief. The court will (in most cases) thereafter schedule oral argument, after which we await the court’s opinion. I typically advise clients that the process from the filing of the notice of appeal to decision takes approximately a year, but in practice this time period can be considerably shorter or longer.
WHAT HAPPENS AFTER A DECISION IS RENDERED?
If the opinion is favorable (i.e., we win), the available relief can take several forms that may include the dismissal of one or more charges, the grant of a new trial, in whole or in part, or a remand for further fact-finding. If we lose, we have the option of seeking further appellate review. In the New York State courts that would mean seeking leave to appeal to the New York Court of appeals. In federal courts the available option is a petition for writ of certiorari to the United States Supreme Court.
Additionally, if a direct appeal is unsuccessful there are other proceedings that might be available. In state court, for example, issues that require development of facts outside the appellate record, such as whether the client was denied the effective assistance of counsel in the lower court are brought via New York Criminal Procedure Law Article 440, and if the client believes he or she was denied effective assistance of counsel on appeal a separate “coram nobis” action can be brought in the Appellate Division. In federal prosecution a claim that effective assistance of counsel was denied can be brought in federal district court via a habeas corpus motion under 28 U.S.C. § 2255.
A TYPICAL “THANK YOU”
We get numerous “thank yous” from grateful clients, many of which you can read here and here, Here’s one:
No words to express my gratitude for what you have done for my son!
When I heard the sentence posed upon my son, I thought my whole life was over. It was when I was referred to Mr. Levitt that I found hope. Richard Levitt was not only an attorney to me, he was also the person whom I was able to rely upon for every concern and doubt that presented itself. Mr. Levitt was always accessible at any time and any day that I needed him. He encouraged my son to use his time in prison in a positive manner. Mr. Levitt listened to my son and he was always available when he had concerns throughout the entire case. As expected, we won the appeal in the Second Circuit Court and Mr. Levitt made it possible to bring my son home. The darkness in my home has lifted all thanks to Mr. Levitt and his team.
ADDITIONAL READING
For additional guidance regarding the issues raised in this article and concerning other areas of our practice you may want to read about our representation investigations, wrongful convictions, post-conviction representation, forfeiture and restitution, applications, financial compensation for wrongful convictions, criminal proceedings in the state and federal courts, and civil litigation.
Contact Us
📞 Call Levitt & Kaizer: office (212) 480-4000 cell (917) 324-4000
📍 Office: 40 Fulton Street, Suite 1702, New York, NY 10038-1850
🖥️ Website: www.levittandkaizer.com
