If you’ve been convicted, all hope is not lost. You have the right to appeal your conviction to a higher court, which can review whether trial errors affected the verdict or whether your conviction was supported by sufficient evidence. Understanding the appellate process and your appeal rights is critical.
This page explains your right to appeal, appellate procedure, grounds for appeal, and how to maximize your chances on appeal.
In New York, you have an automatic right of appeal to the Appellate Division if you were convicted after a jury trial or trial before a judge, or sentenced to imprisonment after pleading guilty (with limited exceptions). You must file a Notice of Appeal within 30 days of sentencing to preserve your appeal rights. Missing this deadline can result in loss of appeal rights.
Your direct appeal for a felony conviction goes to the Appellate Division, which covers your region (e.g., Appellate Division, Fourth Department for Western New York). This court reviews the trial record for legal errors, reviews whether evidence was sufficient to convict, reviews whether sentence was legally imposed, and may order a new trial, sentencing, or acquittal.
If your Appellate Division appeal is denied, you can seek review by the Court of Appeals (New York’s highest court), but this is rare and difficult. The Court of Appeals accepts fewer than 5% of cases. You must demonstrate a significant constitutional question or issue of public importance.
If state appeals are exhausted, you may be eligible for federal habeas corpus review in federal court, but only on limited grounds (usually federal constitutional issues).
Improper jury instructions, admission of improper evidence, prosecutorial misconduct, or other errors during trial that may have affected the verdict.
The prosecution failed to prove guilt beyond a reasonable doubt. The appellate court reviews whether a rational jury could have convicted based on the evidence presented.
Your trial attorney performed so poorly that you were denied a fair trial. You must show the attorney’s performance was deficient and it prejudiced the outcome.
The prosecutor failed to disclose exculpatory evidence (Brady material) or evidence affecting witness credibility (Giglio material).
The sentence was imposed illegally (outside statutory range), was excessive or disproportionate, or the judge abused discretion in sentencing.
Your conviction violated your constitutional rights (Fourth Amendment search and seizure, Fifth Amendment self-incrimination, Sixth Amendment right to counsel, etc.).
A direct appeal reviews the trial record for legal errors. A notice of appeal must be filed within 30 days of sentencing. Reviewed by the Appellate Division. No new evidence (review of existing record only). Focuses on errors that appear in the trial record.
Post-conviction relief is available years after conviction based on newly discovered evidence or ineffective assistance of counsel. Can be filed years after conviction (no time limit in some cases). Allows new evidence to be presented. Includes claims of ineffective assistance of counsel. May include evidentiary hearings where witnesses testify.
You (or your attorney) file a Notice of Appeal within 30 days of sentencing. This formally initiates the appeal. It is not the appeal itself
If you cannot afford counsel, the court appoints an appellate attorney (often different from your trial attorney).
Your appellate attorney compiles the record—all documents, transcripts, and evidence from trial (and/or proceedings below)—and sends it to the appellate court (typically 2-3 months).
Appellant’s Brief (your side): Your attorney files a written argument explaining legal errors and why they warrant reversal. Timeline: Usually 90 days from record completion. Content: Statement of facts, legal arguments, case citations, request for relief.
Respondent’s Brief (prosecution): The prosecution files a brief defending the conviction and arguing no reversible error occurred (typically 30-60 days after appellant’s brief).
Your attorney may file a reply brief addressing arguments in the prosecution’s brief.
In some cases, the appellate court schedules oral arguments where attorneys present arguments to a panel of judges (typically 15-20 minutes per side). Not all cases have oral arguments. If you do not request oral argument, it is typically deemed forfeited.
The appellate court issues a written decision, which may either: Affirm (uphold the conviction); Reverse (overturn the conviction); Modify (reduce the sentence or reduce the conviction to a lesser-included charge); or Reverse and remand (order a new trial or resentencing).
The entire appellate process typically takes months from filing the Notice of Appeal to receiving a decision. This includes: 30 days to file Notice of Appeal; 2-3 months for record compilation and delivery to appellate court; 90 days for appellant’s brief due; 30-60 days for respondent’s brief due; 14 days for reply brief due (if filed); time for oral argument to be scheduled and heard; and 6+ weeks for appellate court consideration and decision after oral argument (if any).
One of the most common appeal grounds is that your trial attorney provided ineffective assistance. You must prove two things: Deficient performance (your attorney’s performance fell below an objective standard of reasonableness) and Prejudice (there is a reasonable probability the deficiency affected the outcome of the trial). Examples of ineffective assistance include: failure to investigate your defense or interview witnesses, failure to file suppression motions when evidence was illegal, failure to cross-examine key prosecution witnesses, failure to present available defense evidence or witnesses, providing advice that conflicted with your interests, and lack of preparation for trial.
To appeal a legal error, that error must generally be preserved in the trial record. This means your trial attorney must have objected to the error at trial or made a motion addressing it. Without preservation, appellate courts may refuse to consider the issue. Experienced trial attorneys preserve issues for appeal even if they lose at trial, giving appellate courts a record to review.
Appeals require different skills than trial work. An appellate specialist will conduct legal research finding relevant case law to support your arguments. Your attorney will write persuasive briefs—judges decide cases on briefs. Your attorney understands appellate procedure and technical rules for filing, timing, and format. Your attorney spots appealable errors in trial records. Your attorney understands how appellate judges think and what arguments persuade them.
Yes, with limitations. You can appeal a guilty plea conviction on limited grounds (illegal sentence, constitutional violations, newly discovered evidence). However, you cannot appeal the underlying conviction because you admitted guilt, and in many cases the District Attorney requests a waiver of appeal at the time of a guilty plea that prevents you from appealing most issues. In those circumstances, you typically can only challenge whether the plea was knowing, voluntary, and intelligent; or whether the court had jurisdiction to hear your case in the first place.
The court will appoint an appellate attorney (public defender or legal aid) if you cannot afford counsel. You have a constitutional right to counsel on direct appeal.
You may be able to stay out on bail pending appeal if you can show a substantial question about whether the conviction should be reversed and a likelihood of reversal. This is called “release pending appeal” and is discretionary with the judge.
12+ months is typical from filing Notice of Appeal to receiving a decision. Some cases move faster, others take longer.
If you’ve been convicted and want to appeal, contact Parker MacKay immediately. With extensive appellate experience, Parker MacKay will evaluate whether your conviction warrants appeal and aggressively pursue reversal or sentencing reduction.
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This page is for informational purposes only and does not constitute legal advice. Every case is unique. Consult with a qualified New York criminal defense attorney for legal advice on your specific situation.
Whether you are facing criminal charges, a complex business dispute, or need to protect a hard-won result on appeal, we bring the trial-tested experience your case demands.