Three vehicles. One objective: post-conviction relief for New York inmates in state and federal court.
A direct appeal is the first vehicle available to a convicted defendant following a judgment of conviction. In New York, direct appeals from Supreme Court and County Court convictions are taken as of right to the Appellate Division. The Appellate Division is divided into four departments based on geography. Depending on the county of conviction, appeals are heard by the First Department (Manhattan, the Bronx), the Second Department (Brooklyn, Queens, Staten Island, Long Island, Westchester, and other downstate counties), the Third Department (upstate New York), or the Fourth Department (western New York).
The direct appeal is the broadest vehicle for challenging a conviction. On direct appeal, the court reviews the trial record for both legal error and, in New York, factual sufficiency. New York's intermediate appellate courts have the power to reverse on the weight of the evidence, a standard more favorable to defendants than the federal sufficiency standard. That is a significant strategic opportunity that trial counsel and many defense attorneys underutilize.
In most New York felony cases, the notice of appeal must be filed within 30 days of sentencing. Failure to file timely forfeits the direct appeal right. If you are outside this window, CPL 460.30 provides a one-year extension upon a showing of good cause. Contact us before that window closes.
Review by the New York Court of Appeals, the state's highest court, is discretionary in most criminal matters. Following an adverse decision in the Appellate Division, a defendant may seek leave to appeal to the Court of Appeals. The Court accepts a small fraction of criminal leave applications. We identify cases with genuine statewide significance or unresolved constitutional questions and develop leave applications accordingly.
Where a conviction arises from a federal prosecution or where a federal habeas proceeding has produced an adverse ruling, we handle appeals in the United States Courts of Appeals for the Second Circuit. Second Circuit appellate practice requires familiarity with the procedural requirements of AEDPA and the Antiterrorism and Effective Death Penalty Act's deferential standards of review.
CPL Article 440 provides New York inmates with a mechanism to challenge their conviction or sentence in the trial court based on facts outside the appellate record. Unlike a direct appeal, which is limited to what was before the trial court, a CPL 440 motion can be based on evidence that was not available at trial, constitutional violations that did not appear in the record, or claims of ineffective assistance that depend on off-record facts such as what trial counsel failed to investigate or advise.
A CPL 440.10 motion attacks the conviction itself. A CPL 440.20 motion attacks the sentence. Each has distinct procedural requirements and distinct grounds. We identify the applicable statute, develop the supporting factual record, and draft the motion and supporting memoranda of law.
CPL 440.10(1)(g) allows a conviction to be vacated upon newly discovered evidence that could not have been discovered at the time of trial with due diligence and that would probably have produced a different verdict. This is a demanding standard. We assess whether proposed evidence qualifies, how to develop the record supporting it, and whether the probability-of-acquittal standard can be met before filing. We do not file motions that cannot clear this bar.
The prosecution's failure to disclose material exculpatory or impeachment evidence in violation of Brady v. Maryland is a cognizable 440 ground. Brady claims are among the most frequently litigated post-conviction issues and among the most technically demanding. We have experience identifying and developing Brady records, including through investigative work, FOIL requests, and cross-referencing trial testimony against known withheld disclosures.
Under the Strickland standard, a defendant must show both that counsel's performance was deficient and that the deficiency prejudiced the outcome. In New York, People v. Benevento provides a broader state constitutional standard. 440 motions based on ineffective assistance require an off-record evidentiary foundation, often developed through attorney affidavits, investigative records, and expert submissions. This is not a claim that can be made by citing the trial transcript alone.
Federal habeas corpus under 28 U.S.C. Section 2254 allows a state prisoner to challenge a state court conviction in federal court on the ground that the conviction was obtained in violation of the United States Constitution. It is the vehicle of last resort for most state prisoners: federal courts will not entertain a habeas petition unless the petitioner has exhausted available state remedies.
Exhaustion requires that the constitutional claim was fairly presented to the state courts, including through the state's highest court, before being brought to federal court. Failure to exhaust creates procedural default, which bars federal review absent a showing of cause and prejudice or actual innocence. We assess exhaustion at the outset of every potential habeas matter before filing.
The Antiterrorism and Effective Death Penalty Act of 1996 significantly restricts federal habeas review. Under AEDPA, a federal court may not grant habeas relief on a claim that was adjudicated on the merits in state court unless the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court, or was based on an unreasonable determination of the facts. This is a demanding standard. We identify the subset of cases where AEDPA's limitations do not foreclose relief and develop those records accordingly.
AEDPA imposes a one-year statute of limitations on federal habeas petitions, running from the date on which the state court judgment became final. Certain events toll this period, but the calculation is jurisdiction-specific and fact-sensitive. If you believe your matter may have a federal habeas vehicle, contact us before the one-year period expires. Late filing is fatal to the petition in almost all circumstances.
We handle habeas petitions before the United States District Court for the Southern District of New York, which covers Manhattan, the Bronx, Westchester, Rockland, Orange, Putnam, Dutchess, and Sullivan Counties, and the United States District Court for the Eastern District of New York, which covers Brooklyn, Queens, Staten Island, Nassau, and Suffolk Counties. Both districts are within the Second Circuit.
We review every inquiry and provide an honest assessment of available post-conviction vehicles.
Request a Case Review