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Appealing a felony conviction?

New York, NY |

Can one appeal a felony conviction after the time was served? Someone is making the claim that he maintained his innocence even though he was convicted in 2004, served time & was released in 2007 however now is trying to appeal his conviction in 2012. Is this even possible?

Attorney Answers 5

Posted

Possible, yes. Likely to succeed, no. Consult with a local appellate lawyer asap to go over all the facts and issues.
Good Luck!

Joseph A. Lo Piccolo, Esq.
Immediate Past President, Criminal Courts Bar Association 11'-12'
Hession Bekoff & Lo Piccolo
1103 Stewart Ave, Suite 200
Garden City, NY 11530
516-408-3666 (o) / 516-408-3833 (f)
Jlopiccolo@hbclaw.net

I am a criminal defense attorney practicing in Nassau, Suffolk and New York City. The above information is not a substitution for a meeting whereas all potential legal issues can be discussed.

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Asker

Posted

Thanks Mr. Lo Piccolo

Posted

Yes, depending on the specific circumstances you would want to consider a
CPL 440.10 Motion.

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Sent wirelessly, please excuse typos and brevity.
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This answer has been prepared for informational purposes only and does not constitute legal advice of Todd A. Spodek, Esq., Storobin & Spodek, LLP, or any of its attorneys, and is not guaranteed to be correct, complete, or up-to-date. You should not act, or rely on any information in this website without seeking the independent advice of an attorney of your choice.

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Posted

Specific circumstances meaning proof of an error of law? Does an appeals court hear new evidence?

Posted

You may still be able to file an appeal. A motion could be made to vacate the judgment based on new evidence or other enumerated grounds.

I have been an attorney in New York for almost 25 years. website: Brooklynlaw.net Phone #: 718-208-6094 email: howard@brooklynlaw.net. This answer is only for informational purposes and is not meant as legal advice.

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Asker

Posted

Thank you Mr. Schwartz. So, an appeals court would hear new evidence? Part of the reason for asking my initial question is because I was reading on one site that they would not hear new evidence but would only address errors of law.

Asker

Posted

Here's what I read... "Appeals address only "errors of law. The Appellate Court does not reevaluate the evidence or hear new evidence—its decision is based solely on the trial court records. A successful appeal will point to something that went wrong in the trial process, such as evidence being admitted that should not have been."

Asker

Posted

That was from www.totalcriminaldefense.com

Howard A. Schwartz

Howard A. Schwartz

Posted

No. If the ground to overturn the conviction is new evidence, then the procedure would be to make a post-conviction motion to the original trial court. You could research sections 330 and 440 of the criminal procedure law. Good luck.

Asker

Posted

Alright, thank you.

Posted

An appeal is not likely but a post conviction motion has a better chance.

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Posted

Motion to vacate?

Posted

Yes, although it is very difficult. The reason people do this after release from jail is that it is possible to recover damages from the government for wrongful conviction.

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