DAMIANO M. FRACASSO
ATTORNEY AT LAW
Celebrating 21 Years of Service
2001 - 2022
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POST CONVICTION RELIEF
My office can assist you with providing legal services relating to Appeals and Post – Conviction Relief applications in Morris County, Sussex County, Warren County, Passaic County, Bergen County, Hunterdon County, Somerset County, Mercer County, Essex County, Hudson County, Monmouth County and Union County:
There are basically three different types of appeals:
Generally, there are three types of appeals in New Jersey state courts: interlocutory appeals, appeals from final orders and cross appeals. An interlocutory appeal is an appeal you apply for while your case is pending which the higher court has the discretion to decide or require you to wait until a final judgment is entered. A final appeal is an appeal you have an automatic right to file after the Court enters a final decision on your case. A cross appeal is an appeal you file as a result of your opponent filing an appeal of their own. Like in any legal matter, the determination whether an appeal is interlocutory or final can be complex so please contact us to do discuss what type of appeal you need to enter.
Do not delay, there are short and strict deadlines to file, serve and perfect your appeal.
With very limited exceptions, there are short and more often than not, very strict deadlines to file, perfect and serve your appeal depending on what type of appeal you need to file. Depending on the type of appeal you need to file and the court you need to file it in, the deadline can range from 10 days to 45 days from the action taken by the lower court (the court you are appealing from), state agency, or municipal board.
Contact us immediately to schedule an office consultation to determine the deadline(s) that apply to the appeal you want to file. If you think you may have already missed the deadline by the time you are reading this, contact us to schedule an office consultation for us to discuss whether there is a proper legal exception which can still allow your appeal to be filed at this juncture.
Types of Appeals We Handle
Appeals from the Municipal Courts;
Appeals from the Superior Court:
Law Division (and Special Civil Part, Small Claims Part)
Family Division (Divorce, Custody, Child Support, Parental Rights, Juvenile, etc.)
Chancery Division (Non – foreclosure General Equity Matters and Probate Matters only); and
Appeals from Administrative Agencies such as the Motor Vehicle Commission;
Appeals from a Fee Arbitration Committee;
Appeals to the New Jersey Supreme Court;
Appeals from the United States Bankruptcy Court to the United States District Court;
Appeals to the United States Third Circuit Court of Appeals; and
Appeals to the United States Supreme Court.
Appeals are complicated.
Appeals are not “do overs.” They are very complex and structured and your likelihood of success at the appeals level depends on your understanding of the procedural rules as well as the quality and presentation of your arguments. Do you know the maximum page limit requirements for brief? Do you know the minimum font size you are allowed to use in a brief or the minimum margin with your brief must contain? The Appeals Courts have strict formatting, filing and service requirements. Do you know the difference between plain error and reversible error? Do you know what “de novo on the record” means or how it pertains to your appeal? Do you know the applicable standard of review the appeals court must apply? Do you know when you have to notify the Attorney General’s Office of an appeal you filed? If you do not comply with these rules and procedures, you appeal may be dismissed or worse yet be unsuccessful. I am licensed to practice in all of New Jersey’s appellate courts right up to the New Jersey Supreme Court as well as the Federal 3rd Circuit Court of Appeals and the United States Supreme Court. Contact us to discuss if we can represent you with regard to filing your appeal, requesting a stay pending appeal, preparing, filing and serving your appellate brief and appendix and appearing at oral argument.
Appeals are Different from Post – Conviction Relief
Except as otherwise required by the Constitution of New Jersey, a petition for post – conviction relief is the exclusive means of challenging a judgment rendered upon conviction of a crime. It is not, however, a substitute for appeal from conviction or for motion incident to the proceedings in the trial court, and may not be filed while such appellate review or motion is pending.
A petition for criminal post-conviction relief will he heard if based upon any of the following grounds:
(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;
(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;
(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law if raised together with other grounds cognizable under paragraph (a), (b), or (d) of this rule. Otherwise a claim alleging the imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law shall be filed as a motion to reduce or change sentence.
(d) Any permissible ground as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.
With limited exceptions, no petition for post conviction relief shall be filed more than 5 years after the date of entry pursuant to R. 3:21-5 of the judgment of conviction that is being challenged unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice.
A petition for post – conviction relief of a municipal court conviction is different from one in the Superior Court. They can be heard based on the following grounds:
(1) substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of New Jersey;
(2) lack of jurisdiction of the court to impose the judgment rendered on defendant's conviction;
(3) imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law; or
(4) any ground previously available as a basis for collateral attack on a conviction by habeas corpus or any other common law or statutory remedy.
The time limitations are different too:
(1) A petition to correct an illegal sentence may be filed at any time.
(2) A petition based on any other grounds shall not be accepted for filing more than five years after entry of the judgment of conviction or imposition of the sentence sought to be attacked, unless it alleges facts showing that the delay in filing was due to defendant's excusable neglect.
(3) There are also other exceptions to the five year filing requirement (when it applies).
Appeals are Different from Motions for a New Trial
In the Municipal Court, On defendant's motion, the court may, pursuant to the applicable time limitations grant the defendant a new trial if required in the interest of justice. The court may vacate the judgment if already entered, take additional testimony, and direct the entry of a new judgment. A motion for a new trial, based on the ground of newly discovered evidence, shall be made within two years after entry of a final judgment. A motion for a new trial on the grounds of fraud or lack of jurisdiction may be made at any time. A motion for a new trial, based on any other grounds, shall be made within twenty days after the entry of judgment of conviction or within such further time as the court fixes during the twenty-day period.
In the Criminal Court
The trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice. If trial was by the judge without a jury, the judge may, on defendant's motion for a new trial, vacate the judgment if entered, take additional testimony and direct the entry of a new judgment. The trial judge shall not, however, set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.
A motion for a new trial based on the ground of newly-discovered evidence may be made at any time, but if an appeal is pending, the court may grant the motion only on remand of the case. A motion for a new trial based on a claim that the defendant did not waive his or her appearance for trial shall be made prior to sentencing. A motion for a new trial based on any other ground shall be made within 10 days after the verdict or finding of guilty, or within such further time as the court fixes during the 10-day period.
In Civil or Family Court
A new civil or family court trial may be granted to all or any of the parties and as to all or part of the issues on motion made to the trial judge. On a motion for a new trial in an action tried without a jury, the trial judge may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment. The trial judge shall grant the motion if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law.
A motion for a new trial shall be served not later than 20 days after the court's conclusions are announced in nonjury actions or after the return of the verdict of the jury. The motion shall be noticed for hearing and argued no later than the second regular motion day following the service thereof, unless the court for good cause shown orders the hearing fixed for either an earlier or a later date. The opposing party may, within 10 days after service of the motion, serve a cross-motion for a new trial returnable at the same time and place as the motion. If a motion for a new trial is based upon affidavits they shall be served with the motion; opposing affidavits shall be served within 10 days thereafter which period may be extended for an additional period not exceeding 20 days either by written stipulation of the parties or court order. The court may permit reply affidavits. Except in special circumstances the motion shall be decided by the judge on trial notes without awaiting a transcript of the testimony.
A motion for a new trial or any action or adverse determination on the motion shall not bar an appeal or the review of any matter on appeal.
Appeals from the Civil & Family Court are different than Motions for Relief from a Civil or Family Judgment Or Order.
On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.
The motion shall be made within a reasonable time, and for reasons (a), (b) and (c) of R. 4:50-1 not more than one year after the judgment, order or proceeding was entered or taken however, a motion for relief from a judgment or order does not suspend the operation of any judgment, order or proceeding or affect the finality of a final judgment, nor does this rule limit the power of a court to set aside a judgment, order or proceeding for fraud upon the court or to entertain an independent action to relieve a party from a judgment, order or proceeding.
Appeals from the Civil & Family Court are different than Motions for Reconsideration of a Civil or Family Judgment Or Order.
Except to correct a clerical error (which is also different from an appeal) a motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it. The motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred, and shall have annexed thereto a copy of the judgment or order sought to be reconsidered and a copy of the court's corresponding written opinion, if any.
Does this sound complicated? Don’t worry, it is. Call or email today to schedule an office consultation to see how we can help you with an appeal or application for post – conviction relief or a motion for a new trial. The easy thing to know about these legal procedures is that there are deadlines and you do not want to miss them so do not delay. Depending on my schedule, I can meet with you for a one – on – one consultation the same day you contact me. My hourly fees are also less for appeals because of the amount of time they consume. I want to do my best not to make the appeals process cost prohibitive for you.