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Can this be brought up on appeal?

Yonkers, NY |

So I did some research, and found a bankrupt record for my arresting officer filed on 6-23-12 and discharged on 10-12-12, during these times the ada alleged he was injured and recovering and couldnt make it to court, if he indeed was later found out to be attending the bankrupt proceedings and neglecting the court days can this be brought up on appeal, further more we never really got a straight answer as far as the nature of his injuries, only that he was on medications (tylenol) which would prevent him from testifying.

Attorney Answers 6


  1. Best answer

    A defendant interested in an appeal or post-conviction proceedings as to a conviction that has already been sustained should consult with the attorney who originally handled the case, or with another local attorney, to best determine any grounds for such actions. Appellate and post-conviction practice is a very technical area of law with many important deadlines and other considerations, and a general discussion forum cannot adequately address possible claims. However, it does seem unlikely that missed court appearances will be grounds for a successful challenge, especially if the defendant later entered a plea of guilty. Good luck, and please consult confidentially with a local attorney for specific advice on a specific case.

    The author provides answers on this site based on hypothetical questions and fact patterns. The answers provided are for general educational and informational purposes only, and they do not constitute legal advice, which would require a personal consultation and representation agreement. Questions and answers on this site do not create an attorney-client relationship, and the communications are not privileged. Any citizen with a legal issue should consult personally with an attorney and should rely only on legal advice provided in a formal attorney-client relationship.


  2. What you found is not on the record so unless you can include it in a speedy trial motion it can not be raised on appeal and would have to be raised in a CPL 440 motion. However, it sounds highly speculative.

    I am a former federal and State prosecutor and have been handling criminal defense and personal injury cases for over 17 years. The above answer, and any follow up comments or emails, is for informational purposes only and not meant as legal advice.


  3. I don't see how that would benefit you on appeal. A judge had to grant any continuances that were granted in the case. Debtors rarely attend Bankruptcy Court anyway. If you are hoping for a successful appeal, you will need something better than this by a long shot. What exactly finds you in Federal Court?

    Experienced Criminal Defense Attorney--


  4. On appeal, you can only raise issues contained in the record. There is no record in the lower court of the bankruptcy issue so it can't be raised on appeal. In addition, it seems unlikely that it would help you anyway.l How would the proceeding have been different had you known that the officer was dealing with a bankruptcy? It may be that he was injured and had a bankruptcy. He was not unavailable for four months because of a bankruptcy. Even if he was, that is not a basis to attack his credibility.

    This answer is provided for educational purposes only and is not intended as the practice of law in any jurisdiction in which I am not licensed. The answer does not constitute legal advice nor does it create an attorney-client relationship. The answer is based only on the information provided, and may be inaccurate in the context of additional facts that have not been provided. The questioner should be aware that I am only licensed to practice law in the state and federal courts of Minnesota. Accordingly, before taking any action or refraining from taking any action, the questioner should consult with an attorney licensed to practice in his or her jurisdiction.


  5. Just as a top-of-the-head reaction, even if there were some way of raising this on appeal, which there may not be, I doubt very much that it would help you.


  6. The record controls unless a valid Rule 60 motion can assist the defense.

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