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.