Can I appeal my harassment charge because of new evidence in New York? 2 Answers as of March 28, 2011

I was charged with hunter harassment in Dec. I was in a town court where I represented myself. Can I appeal on the account of new evidence? I have a video that will prove my innocence. What paperwork do I file? I live in New York

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Law Offices of John Carney
Law Offices of John Carney | John Carney
You can challenge any conviction at any time by a 440.10 motion,but you will need to retain an experienced criminal attorney, it is not something you can accomplice pro se under most circumstances. Courts do not usually respond to motions sent in by defendants. It is a very complicated written motion which will cost around $2,500 to $5,000 if it is a very simple issue that requires no evidence, research, or hearings, and there is no guarantee that it will be successful. One of the grounds for a motion to vacate a conviction under CPL 440.10 is the discovery of new evidence that was not available at the time of the trial with due diligence by your attorney. If you did not have an attorney then that fact alone is also grounds to challenge a prior conviction. I am working on such a motion currently and it has taken two months of investigation, phone calls, record discovery, and over 25 hours of work which is billed at $200 per hour. That is just the preliminary work to find the transcripts, talk to the attorney and prosecutor, do the legal research, write the motion, and file it with the court and DA. It must then go before the judge that handled the case and perhaps require hearings and oral argument. The total fee could be over $7,000 on a complex motion like this and your case is likely to be as difficult and costly. You may be able to have Legal Aid handle it for free if you contact their local office, but usually they only handle clients that are currently charged with a crime or the appeal of the cases the represent you on.I do not know if they would handle such a motion for free or if you would qualify as an indigent person under these circumstances.
Answer Applies to: New York
Replied: 3/28/2011
Rothstein Law PLLC
Rothstein Law PLLC | Eric Rothstein
Did you plead guilty; were you convicted after trial. You may be able to file a Criminal Procedure Law 440 motion. Did you have access to the video before? Representing yourself is not a good idea. I am a former federal and State prosecutor and now handle criminal defense. Feel free to check out my web site and contact me if you wish to retain counsel.
Answer Applies to: New York
Replied: 3/28/2011
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