How the Appeal process works
Highly contentious lawsuits don’t always end at trial. A party not satisfied with the trial court’s decision may have the opportunity to appeal. An appeal is an application to a higher court to review a lower court’s ruling.
Clients are usually wary of appeals—and they should be. Typically, the parties have already expended substantial amounts of time and money to reach a verdict at trial. The appellate attorneys at Bertollini & O’Reilly are dedicated to providing the highest standard of appellate advocacy while keeping in mind our client’s goals.
We provide advice and counsel to clients when litigated controversies are likely to result in appeals. This practice structure provides a well-rounded perspective to handle matters to the advantage of our clients. We are skilled, creative, and accomplished writers; we view brief writing as an important central element of any appeal. We regularly brief and argue an array of complex legal issues in both State and Federal Courts.
Combining our problem-solving skills with excellent advocacy to achieve cost-effective solutions that recognize the bottom line is what we do. Most of our appellate matters have been referred to us by other trial attorneys, as attorneys can recognize superior writing and argument. And unlike other firms, we don’t pass your appeal on to an associate to write. We write and argue each and every appeal. Be confident that when you choose us, the person you retain will be the same person writing and arguing your appeal.
Bertollini & O’Reilly is a Litigation Law Firm in New York that handles Civil as well as Criminal Appeals of both New York and New Jersey Courts. We also handle Immigration Appeals to the BIA and the Federal Court of Appeals for the First, Second, and Third Circuit.
Appeals we handle
Our Firm provides competent and cost-effective appellate representation in the following cases:
Appeals to the New York Supreme Court, Appellate Division
The New York Appellate Division hears appeals from judgments or orders of the Courts of original jurisdiction in civil and criminal cases, and review civil appeals taken from the Appellate Terms and the County Courts acting as appellate courts.
There are four Appellate Divisions of the Supreme Court, one in each of the State’s four Judicial Departments.
The First Department covers the Bronx and Manhattan; the Second Department covers Queens, Brooklyn, Staten Island, Long Island and Dutchess, Orange, Putnam, Rockland and Westchester counties; the Third Department includes an area extending from the territory of the Second Department north to New York’s borders with Vermont and Quebec, and includes the cities of Albany, Troy, Schenectady, Saratoga Springs, and Binghamton; the Fourth Department covers the remainder of the state, and includes the cities of Buffalo, Rochester, and Syracuse.
Appeals to the New Jersey Superior Court, Appellate Division
In New Jersey, the Appellate Division of the Superior Court hears appeals from the final judgments of the Law Division and the Chancery Division of the Superior Court, final judgments of the Tax Court and final decisions of State administrative agencies.
The Appellate Division is divided into eight parts of four or five judges each. Judges are rotated among the parts on an annual basis. Unlike the federal and some other state appellate courts, appeals are not allocated among the parts on a territorial basis, and Appellate Division precedent is equally binding statewide. Municipal Court cases are appealed to the Superior Court, which conducts a trial de novo based on the record of the Municipal Court trial.
An Appeal to the Appellate Division starts with filing of Notice of Appeal within 45 days of the date the judgment is filed. Within this term, the appellant must also order transcripts of the Superior Court trial with the Court reporter. Within 45 days of receiving the transcripts, the appellant must file a brief in support of his appeal. Municipal Court and Interlocutory appeals are subject to a shorter 20-day period to be filed.
Motions to vacate a criminal judgment (New York CPL §440.10)
A motion for vacating a criminal conviction in New York can be filed, pursuant to N.Y.C.P. §440.10, at any time after the entry of a judgment, with the court in which it was entered. Section 440.10(1)(b) of the N.Y.C.P. is a partial codification of the writ of error coram nobis, an ancient English common law doctrine.
A judgment may be vacated only in limited case, when the defendant can prove, alternatively, that:
- The court did not have jurisdiction of the action or of the person of the defendant; or
- The judgment was procured by duress, misrepresentation or fraud on the part of the court or a prosecutor or a person acting for or in behalf of a court or a prosecutor; or
- 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; or
- 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; or
- 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; or
- 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; or
- 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; or
- The judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States.
The motion allows you to inform the trial court of facts that cannot be raised on appeal because they were not in the trial record, since facts presented for the first time on appeal cannot be considered by an appellate court.
Petitions for Post-Conviction Relief in New Jersey
In New Jersey, a person convicted of a crime can file a motion to vacate or set aside a his or her conviction no more than 5 years after the date of entry. A petition for Post-Conviction relief must be filed with the municipal court administrator of the County in which the conviction took place.
Generally, a motion for Post-Conviction Relief cannot be filed more than five years after entry of the judgment of conviction sought to be attacked.
There are only limited grounds for filing a petition for Post-Conviction Relief, such as:
- substantial denial in the conviction proceedings of the defendant’s Constitutional rights;
- lack of jurisdiction of the court to impose the judgment rendered on defendant’s conviction;
- imposition of an excessing sentence or a sentenced imposed not in accordance with the law.
When a person is in custody, a motion for Post-Conviction Relief is filed to vacate the original conviction and seek release from custody. Those that have already been released from custody can file a motion for Post-Conviction Relief as well, especially when collateral consequences of the conviction arise.
Board of Immigration Appeals (BIA) cases
Immigration petitions are administratively adjudicated by the U.S. Citizenship & Immigration Services (USCIS). The decisions rendered by USCIS are always appealable to a higher authority or to a U.S. District Court.
The Board of Immigration Appeals (BIA) hears family-immigration petitions (Form I-130) that are denied by the USCIS as well as adverse decisions of immigration Courts. The vast majority of the decisions of immigration judges involve removal from the United States of undocumented immigrants and lawful permanent residents (Green Card holders) convicted of 1 or more serious crimes. An Appeal to the BIA is timely if it is filed within 30 days from the immigration judge’s decision or USCIS denial. A motion for a stay of removal can be filed together with a Notice of Appeal. The decisions of the BIA are appealable to the U.S. Court of Appeals.
Contact our Firm
If you want to explore your options after an unfavorable judgment against you, please contact us by phone at (212) 566-3572 or by filling out a case evaluation form to set up a free initial consultation.
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