Appeals

The Appeals and Post-Conviction Unit is assigned by the Appellate Division, Fourth Department to represent indigent appellants in Cattaraugus, Chautauqua, Erie, Genesee, Niagara, and Orleans Counties on direct appeals of their judgments of conviction. To be assigned, the trial attorney representing a criminal defendant in New York State Supreme and County Courts must file a notice of appeal within thirty days of the sentencing date and submit an application for poor person relief to the Appellate Division, Fourth Department, or obtain an order pursuant to Criminal Procedure Law 380.55 granting poor person relief on appeal. The Unit also represents some indigent appellants with judgments of conviction from Ontario County. 

Our office may be able to assist you with investigating a CPL § 440.10 motion. Please note that every CPL § 440.10 investigation takes a significant amount of time. If you were convicted in county court or supreme court in Erie, Cattaraugus, Genesee, or Orleans County, write to our office if you would like assistance with a CPL § 440.10 investigation. Following our office’s investigation, LABB will determine whether a CPL § 440.10 motion is viable.

The Domestic Violence Survivors Justice Act (DVSJA) allows for alternative sentencing for individuals who were convicted of a qualifying offense and are serving a sentence in excess or equal to 8 years. DVSJA applications allege that you were the victim of domestic violence and that the domestic violence was a significant contributing factor to why you committed the alleged offense.

If you believe you are eligible for DVSJA relief, please contact our office so we can mail you a questionnaire. The questionnaire helps us determine whether you qualify under the statute and also helps us assess whether there are any conflicts of interest.

LABB is the primary provider for DVSJA applications in Erie, Genesee, Orleans, and Cattaraugus Counties. If your conviction was in any other county, you should contact the public defender’s office that represented you at the time of your sentencing.

If you were sentenced in a town, village, justice, or city court, your appeal will be heard before county court, not the Appellate Division.

These types of appeals are considered “local court appeals.” Our office assists clients with local court appeals on assignment from county courts in Cattaraugus, Genesee, Ontario, and Orleans counties. Our office does not accept local court appeals that are heard before Erie County Court.

Unfortunately, LABB is unable to assist with prison-related claims. If you or a family member are experiencing prison-related problems, please contact Prisoners’ Legal Services.

The Appellate Division, Fourth Department assigns the Appeals and Post-Conviction Unit to handle hundreds of appeals each year. To ensure fairness to our clients, we process assignments in the order they are received, prioritizing based on the date of the judgment of conviction. Upon receiving an assignment, we gather the court file, transcripts of proceedings, the presentence report, copies of evidence presented at hearings or trials, and all relevant documentation. Once the file is complete, a staff attorney is assigned to perfect the appeal. 

It’s important to note that, while the process can be lengthy, all our staff attorneys are highly skilled and dedicated advocates committed to zealously representing our clients and securing meaningful relief for them. Each client is actively involved in their appeal, and the assigned attorney either visits them personally or engages in a confidential telephone call to discuss the case. The client also receives a copy of the brief for review before it is filed. 

After submission of the brief to the Appellate Division, there is typically a waiting period of several months before oral argument and review by the appellate court. The time taken by the court to render a decision varies but generally adds an additional four to six weeks. 

If you are in custody, letters are the best way to communicate with our office, as those communications are protected under the attorney-client privilege. Emails and non-legal phone calls, such as calls made through a third party, or initiated by you as a regular call, are not protected, and also subjected to recording and monitoring by the prison or jail facilities. Therefore, please do not communicate with our office through those means if you are in custody.

If you are out of custody, please remember you must keep us updated if your contact information changes. You may contact our office any time at 716.853.9555 for assistance.

Your appeal is perfected by the filing of an appellant’s brief. Based upon the date the transcript of your case is filed with the Clerk’s Office, the Appellate Division will set an initial deadline for the Legal Aid Bureau of Buffalo, Inc. (LABB) to file your brief. If your appeal cannot be perfected before this deadline, LABB will apply to the court for an extension. It is not unusual for LABB to request several extensions on a case.

LABB is assigned to many cases. To be fair to our clients cases are assigned to a staff attorney by conviction date once the case is “ready” to be worked on. Cases are considered ready once we have all the necessary records to proceed with your appeal, including the transcripts and the court file.

Documents that may have been part of your discovery in the trial court are not necessarily part of the record on appeal if they were not entered into evidence or otherwise incorporated into any motions made by the attorneys below. For this reason, we do not generally have your discovery, nor is it required to go forward with your appeal.

We will send you a draft of your brief to review before it is filed, and you will have an opportunity to provide comment and ask questions about it. You will receive the finalized version of the brief when the brief is filed with the court.

If you choose to file your own pro se supplemental brief, it is due forty-five (45) days after we have filed your main brief with the court. You do not need to request permission from the court to file your own brief, but you must file it on or before the 45th day from the original filing date. Please note that the court considers a brief as filed as of the date that it is received, not the date of mailing.

Once your brief is filed, the Appellate Division issues a scheduling order, which includes the argument term that your case will be submitted or argued. The Court will provide the actual date for your case closer to the argument term.

After your brief is filed, the prosecution will file its response. You should expect that they will argue that the judgment of conviction should be affirmed without modification.

Following the prosecution’s response, LABB may file a reply brief, if appropriate. A reply brief cannot simply repeat arguments made in the main brief. If we file a reply brief on your behalf, you will receive it upon filing. There is a very short turnaround time for a reply brief to be filed, and therefore you will not have an opportunity to review or comment on it before it is filed.

Unfortunately, in-custody defendants are not transported to Rochester for appellate arguments heard at the Appellate Division. Clients are rarely produced in County Court for lower court appeals, as there are no witnesses, and the court will not hear any new evidence. Appellate Division oral arguments are live-streamed, however, so if you have internet access, you may access the argument live at www.ad4.nycourts.gov/go/live. The arguments are also archived, so that you can access them at a later date.

Our Civil Legal Services Unit may be able to assist you with civil matters. These matters include, but are not limited to, financial issues, children and family issues (child support, divorce, etc.), estate planning, renters/homeowner issues, and barriers to employment. The Civil Legal Services Unit also provides re-entry assistance.

If you are interested in obtaining civil legal assistance, please complete the forms sent to you and return them to our office. If you are out of custody, you may apply for civil legal assistance online here. Please know that our office is only able to assist clients with civil legal services in Erie, Niagara, Allegany, Cattaraugus, Chautauqua, Genesee, Wyoming, and Orleans Counties in New York.

The Civil Legal Services Unit ultimately retains the ability to accept or reject cases. The completion of the Civil Legal Services intake forms does not create an attorney-client relationship and does not guarantee that the Civil Legal Services Unit will represent you.

If the Civil Legal Services Unit is unable to represent you, that does not affect your appellate matter. The Appeals and Post-Conviction Unit will continue to represent you in your direct appeal.

Off-record matters cannot be raised before the Appellate Division on direct appeal. This is because off-record matters were not litigated or preserved for appeal in most cases. Because of this, our office cannot include any issues on appeal that are based on off-record allegations.

However, our office makes a preliminary assessment in each case on whether a post-conviction motion is appropriate. If you believe a post-conviction motion is warranted in your case, the staff attorney assigned to your case will discuss this with you after they review your direct appeal.

So that the LABB may achieve the best result in your case, you are encouraged to communicate with your attorney in complete candor. We do not recommend that you discuss your case with anyone else. Although everything you say or write to your attorney is protected by the attorney-client privilege, this is obviously not the case with anyone outside LABB. For example, if you say something incriminating to a fellow prisoner or guard and then are granted a second trial, the person to whom you made the incriminating comment may be called a witness against you.

A CPL 440 motion is a collateral appeal of the judgment of conviction involving matters outside the record on appeal that could, therefore, not be raised in the direct appeal. Our experienced staff attorneys will thoroughly review each client’s file and decide whether it is appropriate to file a CPL 440 motion on their behalf.