What is CAL?

CAL is a not-for-profit corporation of about 40 attorneys, formed in 1997 for the purpose of providing high quality appellate representation to criminal defendants who can’t afford private counsel.  We are assigned to appeals by the Appellate Division, First Department, from Manhattan and Bronx County convictions.  We are also assigned to appeals from Manhattan and Bronx criminal court convictions by the Appellate Term, First Department. We accept no fees from clients and we can only represent and advise people who are assigned to us by the court.  Although we receive funding from the city, we are entirely independent in the exercise of our legal judgment and representation. 

What happens after CAL is assigned?

Immediately upon being assigned to your case, our Managing Attorney’s office opens a case file, contacts you, and begins the process of assembling the minutes and documents needed to prepare a brief.  Gathering these materials can take several months, and possibly longer.  Once this “record” is substantially complete, the case is assigned to an individual attorney who will contact you and prepare the brief.  Before your case is assigned to an individual attorney, you should direct any questions to our Managing Attorney, David Klem.  Once the case is assigned to an attorney, you and your attorney will be in regular communication. 

What is a criminal appeal?

An appeal is a review by a higher court of what happened in the lower or trial court, to determine whether any serious legal errors occurred during the proceedings. An appeals court can consider only the evidence contained in the official record from the lower court, which is called the "Record on Appeal." This ordinarily consists of the minutes of important proceedings (but not the grand jury minutes, which are deemed confidential and not released), documents, such as written motions and court decisions on motions (but not police reports, unless they were exhibits at trial), and physical evidence admitted at trial, such as photographs of a crime scene or a line-up.

How does an appeals court decide the case?

A panel of four or five appellate judges considers the record on appeal and the briefs setting forth the legal arguments of both sides. If there is oral argument, the judges will consider that as well. If you are incarcerated, you will not be produced for the oral argument, but if you are at liberty, or if friends or family want to attend, that is certainly possible.

How long will my appeal take?

This depends on a number of factors, including whether you pleaded guilty or went to trial, how long your trial was, and how quickly we are able to obtain all of your minutes. For a trial case, you can figure that it will take 18 to 24 months from the time we are assigned and open a case file, to the time the appellate court decides the appeal. The basic stages are gathering the record, preparing the brief, waiting to receive the District Attorney’s brief, and waiting for the court’s decision. Each of these stages can take many months.

Is there anything I should avoid doing because it might cause delay?

Yes. Check with us before making any motions on your own or instituting legal proceedings relating to your case. They may cause serious and unnecessary delay of your appeal. They may also make it difficult or impossible to raise certain argument son your behalf later. If you have any motions pending that relate to your case, please let us know about them immediately.

Is there any danger my appeal will be dismissed due to delay?

No. We will make sure that does not happen.
 
What will happen when my minutes are complete?

When the minutes in your case are substantially complete, we will assign your case to an individual attorney, who will contact you shortly after being assigned. Your attorney will keep you informed of progress on your case from then on.  

How do I communicate with my attorney?

If you are at liberty, we encourage you to come in and discuss your case with your attorney in person, or call and do so. If you are incarcerated, written correspondence is the norm. Our office is also able to accept collect phone calls (212-577-2531), unless your attorney is away from their desk and unable to speak with you. Of course, a friend or relative may phone or visit your attorney, as long as we have written permission from you authorizing us to discuss your case with that person. Depending on the issues in the case, we also visit clients at their facilities.  

Can I get a copy of my transcript?

Yes. Write your attorney, when he or she is assigned, and let them know you want a copy.

How will my attorney decide what issues to raise?

First your attorney will identify the possible issues to raise by reviewing the entire record carefully and asking you to identify any issues that you are especially interested in. Once all potential issues are identified, your attorney will determine which issues are viable and which issues will present the strongest appeal. In making this decision, they use their experience and legal judgment, conduct extensive legal research, examine the exhibits in your case, and consult with other experienced CAL attorneys. After the brief is prepared, it is subject to a thorough supervision process, in which it is read and edited by a supervisor with many years of criminal appellate experience. Our aim is file a brief that will make for the strongest presentation in each individual case. 

What happens if my attorney and I disagree about what issues to raise?

Frank and open communication between you and your attorney is extremely important. Do not hesitate to share your thoughts with your attorney. Your views are important to your attorney, just as your attorney’s expertise and best judgment are important to you. If you and your attorney cannot reach agreement as to what issues to raise, you have the right to ask the Appellate Division for permission to file a supplemental brief raising an additional issue or issues. Your attorney will give you more specific information about requesting permission to file a supplemental brief, should this become relevant in your case. 

Can my appeal raise an issue that does not appear on the record?

No. The direct appeal is limited to the record on appeal, which, as mentioned earlier, consists of the minutes, trial court documents, and physical exhibits. However, Criminal Procedure Law Article 440 provides that a motion may be made in the trial court to set aside the judgment of conviction if certain specific criteria are met. CPL §440 motions are most often used to raise issues of newly discovered evidence (significant evidence which could not have been produced at the time of trial), improper conduct which does not appear on the record, and ineffective assistance of counsel. You should not try to file a 440 motion on your own. Doing so may delay your case or even foreclose you from raising a good issue later on. If you believe you have grounds for a 440 motion, or if you have any off-the-record information that you think might help you, please let your attorney know about it without delay.

What issues can I raise if I pleaded guilty?

A guilty plea limits the issues that can be raised on appeal. Some issues which arose before a guilty plea are automatically waived when you plead guilty, and therefore cannot be raised on appeal. These include statutory speedy trial (CPL § 30.30) and statutory double jeopardy (CPL § 40.20). You can still raise on appeal a challenge to a court’s suppression ruling, but if you pleaded guilty before the court rendered a formal decision on the motion, you cannot raise that issue on appeal. Generally, if you pleaded guilty and received a sentence above the minimum allowed by law, you can seek a sentence reduction on appeal. This may not be the case, however, if a valid waiver of the right to appeal was part of your plea bargain. 

Can I withdraw my guilty plea on appeal?

It depends. You cannot withdraw your guilty plea on appeal merely because you changed your mind after pleading guilty and want a trial. However, if the record of your guilty plea indicates that the plea was entered improperly, you may be able to seek plea withdrawal. Doing so carries risks, however, and any such decision should be made after full discussion with your attorney.

What risks do I face if I try to withdraw my guilty plea?

The answer to this question may be complicated and you should discuss it thoroughly with your attorney if it becomes relevant in your case. In brief, if you succeed in withdrawing your plea on appeal, you will be placed back in the position you were in before you pleaded guilty. The charges that were pending against you at that time will be revived. So if you went to trial and were convicted of a higher count or additional counts than you pleaded guilty to, you might end up with a longer prison sentence than the one you are currently serving. Another scenario involves a guilty plea following a suppression hearing. If you raise and win the suppression issue on appeal, you’d be entitled to plea vacatur. If the suppressed evidence was important to the People’s case, this could put you in a favorable position in terms of negotiating a new plea, or better your chances of acquittal if you went to trial. But if the evidence was relatively unimportant, it might make no difference in terms of the plea the People might offer, and it might not even be worthwhile to pursue the suppression issue on appeal. Again, these are calculations that would need to be thoroughly addressed with your attorney.

What happens after my brief is filed?

When your attorney files your brief, the District Attorney has a chance to respond. This may take several months, and your attorney will send a copy to you when the assigned Assistant District Attorney files it. If your attorney decides a reply brief is in order, he or she will file one and send you a copy. When all the briefing is complete, the Appellate Division will place the case on its calendar. 

How will I get the court's decision?

The Court will send us a copy of the order deciding your appeal. An order can affirm a judgment, modify it, or reverse it. Your attorney will send you a copy of the order and opinion as soon as we receive them from the court. 

What happens after the court decides the case?

If you win, you will get a remedy, depending on the type of error that occurred in your case. The remedy will usually be either a new trial, dismissal of the charges against you, or a reduction of your sentence. In each case, your attorney will take care of the necessary paperwork and followup work. If the Court grants some other type of relief, your attorney will explain what will happen.

If you lose, your attorney will make a leave application to the Court of Appeals for you. Criminal defendants have no automatic right of appeal to the Court of Appeals and must ask permission through the leave application. The Court of Appeals has limited jurisdiction and grants leave in only a small number of cases each year, but CAL has obtained leave in a significant number of cases. If leave is granted, your attorney will continue to represent you in the Court of Appeals.

How will my appeal from my misdemeanor or violation work?

If you were convicted of a misdemeanor or violation in criminal court or the summons part, your appeal from that conviction will be heard by the Appellate Term, First Department.

The process in the Appellate Term is similar to what occurs in the Appellate Division. Like in the Appellate Division, the parties will have the opportunity to submit briefs based on the record in the court below and appear for oral argument. Also similar to what happens in the Appellate Division, it can take many months to get the record we need to determine what issues we will raise before the appeals court, then many more months before the District Attorney’s office responds and the appeal is heard in court. Once we receive the record, an attorney will communicate with you to advise you of the next steps, invite you for an appointment if you are at liberty, and provide you with contact information.

Though the process is similar to what occurs in the Appellate Division, but there are a few important distinctions. First, while Appellate Division appeals are heard by a panel of four or five judges, two- or three-judge panels decide cases in the Appellate Term. Another distinction is that the court typically issues a decision just days after the case is argued or submitted to the court for decision.

If your conviction is upheld by the court, we will file an application for permission to the appeal to the Court of Appeals. A judge of that court will decide whether to grant that permission.