Appeals as of Right

Most people generally understand what an appeal is, at its core. At the simplest and most basic level, an appeal is the process of going before a higher court and asking them to review the decisions and procedures of the court below. However, this general concept can be applied in several different ways, from interlocutory appeals taken in the midst of the trial-level proceeding, to a petition for a writ of habeas corpus asking a federal court to review certain decisions of a state court, and everything in between.

When the average person refers to an “appeal,” what they most often are referring to is a direct appeal as of right. What this means is the process of asking an intermediate, of first level, appellate court to review what happened at the trial level after the conclusion of the case at the trial level. In most, if not all, jurisdictions, including New York and the federal courts, criminal defendants have the absolute right to have their case reviewed by the first or intermediate level appellate court after the conclusion of their case at the trial level, whether the case was concluded by way of a trial or a guilty plea. This first appeal “as of right,” is a reference to this absolute right of one phase or level of review, meaning that this first level appellate court must accept the appeal, review the briefs and oral argument, and render a decision. This intermediate level appellate court is the First, Second, Third and Fourth Appellate Divisions in New York, and the Circuit Courts in the federal system including the Second Circuit, which included New York, and the Third Circuit, which includes New Jersey.

This first direct appeal “as of right” differs significantly from subsequent appeals to even higher courts, such as the New York Court of Appeals or the United States Supreme Court, in that these higher appellate courts do not have accept or consider these subsequent appeals. These second or further appeals are appeals “by leave” or “by permission,” which means that the criminal defendant, who has presumably lost their first direct appeal, must ask the higher appellate court for permission to appeal to that court. In the federal system, this request is done by way of a writ of certiorari. In this application, the criminal defendant-appellant must describe the issue they are asking the court to consider and review, and explain why it is important for this higher appellate court to accept the case. Typically, it will not be sufficient to say that the lower appellate court simply got something wrong. Instead, these appeals “by permission” will only be accepted and heard when there is some significant legal issue at stake which will have effects reaching far beyond the particular case, or where the lower, intermediate appellate courts have come to different conclusions on a particular issue such that the higher appellate court must settle the contradiction among the lower appellate courts. This latter situation is often referred to as a “circuit split” in the federal courts.

The bottom line is that in most jurisdictions, including New York and federal courts, all criminal defendants are entitled to one level of direct appellate review “as of right,” but no more. This means that it is absolutely imperative to get it right the first time, and to have knowledgeable and experienced counsel to assist in identifying the issues deserving of appellate review, and presenting those issues in the most compelling way possible to obtain a reversal of a conviction or sentence, and ensure that the lower courts are following the law and respecting the rights and protections afforded to the accused.