23.44 - 8. Identifying Issues

JurisdictionNew York

8. Identifying Issues

There is no surefire way to ensure that all meritorious issues are identified. Counsel must be careful in scrutinizing a record to ensure that issues are not overlooked. Discussions with trial counsel are helpful. Reading advance sheets on a regular basis can be the key to appellate success.

Issues arise at every stage of the proceedings. Pre-trial proceedings are perhaps the richest source of appellate issues. They present clearly defined issues where one is bound by the pre-trial record and cannot cite the trial record.3478 There are exceptions. Whether redaction of a co-defendant’s statement effectively reduced the statement’s prejudicial impact is a question an appellate court may look at with all the evidence introduced at trial.3479 For severance purposes appellate courts have the “benefit of the full trial record.”3480

Consider whether any pre-trial motions should have been made but were not. Failure might be a basis for a claim that the appellant was denied effective assistance of counsel. The trial transcript makes up the bulk of the record. Only some pages are sources of appellate issues. Erroneous evidentiary rulings rarely lead to reversal of convictions; more often, an incorrect ruling is “harmless error.” But when a ruling goes to a critical matter or is part of a pattern, a defendant has been denied a fair trial.3481 Appellate courts have been receptive to arguments for reversal based on either errors in the jury charge as given or the refusal to grant a proper defense request to charge. Thus, all proposed instructions as well as the actual charge given should be studied carefully. Prosecutorial misconduct such as the withholding of exculpatory evidence, improper question and comments, and improper arguments in summations also result in a reversal. Courts acknowledge their reluctance to reverse on prosecutorial misconduct grounds.3482 The courts often deliver rebukes to the prosecutors, however. Occasionally the misconduct will be held to have deprived a defendant of a fair trial.3483

The strength of the evidence produced at trial, in toto, must also be considered. Both the Court of Appeals and the intermediate appellate courts will consider whether the evidence was insufficient as a matter of law to prove the charged crime. The intermediate appellate courts also have the power to determine whether the verdict was against the weight of the evidence, even if it was legally sufficient.3484 Even where a conviction is supported by legally sufficient evidence and is not against the weight of the evidence, an intermediate appellate court has the power to reverse the judgment of conviction in the interest of justice when “there is a grave risk that an innocent man has been convicted.”3485

Sufficiency and weight review are distinct concepts. To determine whether a verdict was based on sufficient proof, a court must marshal competent facts most favorable to the People and determine whether, as a matter of law, a jury could logically conclude that the People sustained their burden of proof. Evidence of guilt is legally sufficient if the facts, viewed in the light most favorable to the People, provide a valid line of reasoning and permissible inferences from which the finder of fact could have rationally concluded that the elements of the crime were established beyond a reasonable doubt.
A legally sufficient verdict, however, may be against the weight of the evidence. Unlike a sufficiency analysis, weight of the evidence review requires an intermediate appellate court to act, in effect, as a second jury by rendering its own determination of the facts as proved at trial and at the time of appeal. In according great deference to the fact-finder’s opportunity to view the witnesses, hear the testimony, and observe demeanor, the reviewing court must first determine whether an acquittal would not have been unreasonable. If so, the court must weigh conflicting inferences that may be drawn from the evidence and evaluate the strength of such conclusions. Based on the weight of the credible evidence, the court then decides whether the jury was justified in finding the defendant guilty beyond a reasonable doubt.
This standard generally requires factual assessments that are within the exclusive province of the intermediate appellate courts. Consequently, the Court of Appeals cannot review a weight of the evidence challenge unless the intermediate appellate court manifestly failed to consider the issue or did so using an incorrect legal principle. Where the intermediate appellate courts err as a matter of law, the remedy is to reverse and remit for a proper assessment of the weight of the evidence. 3486

It may be that defense counsel had a conflict of interest.3487 The actions or inactions of counsel may have deprived the defendant of his right to effective assistance. The standard for review of claims of ineffective assistance is different under New York law3488 than under federal law.3489 In the federal system, a defendant must prove that his trial counsel did not render reasonably competent assistance, and that there is a reasonable probability that, but for the trial lawyer’s inadequacy, the outcome of the trial would have been different. In New York, a showing of prejudice is significant but not an indispensable element in assessing whether a defendant received meaningful representation. Meaningful representation is New York’s standard for judging the constitutionally required effectiveness of counsel at trial and upon appeal.3490 To prevail on an ineffective assistance of counsel claim for a failure to object to a prosecutor’s improper summation comments, for example, a defendant must show that the failure entailed forfeiture of a winning argument requiring a mistrial and that the objection was one that no reasonable defense lawyer, in the context of the...

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