ATTORNEY ADVERTISING/LAW OFFICE OF BONNIE C. BRENNAN, Esq.

B. Mission Statement

People frequently wonder why people like me defend persons accused of crimes.  In this culture, and perhaps in every culture, there is a sense that we should lock criminal defendants in cages and throw away the key.  Unless of course, it is you, your child, your spouse or someone about whom you may carek, in which event, the matter takes on an entirely different hue.

We, as attorneys, have an obligation to defend unpopular clients.  Needless to say, the criminally accused are always unpopular.  Most people assume that if someone has been accused of a crime, then they committed the crime of which they are accused.  Plainly, if that were self evident, we would not have constitutional provisions for fair trials.

Currently, we incarcerate American citizens at a rate far greater than that of the Russian Federation, a country which we commonly accuse of authoritarianism.  Countries with the largest number of prisoners per 100,000 of the national population, as of January 2024,  STATISTA (accessed on February 16, 2025). The obvious question is what that says about us?  The current theory is that this has happened because of the war on drugs.  I would suggest that the war on drugs is not very different from the war on bootleggers during Prohibition except both sides had Tommy guns back then. It was a war in fact and not metaphorically speaking.  It is fair to assume, under those circumstances, that the growth in incarceration was curtailed by the growth in cemetery plots.  But police brutality, then largely focused on ethnic Italians, is still with us, so something else has changed.

What I believe has changed, indeed had already started to change with Prohibition, is that we have abandoned a criminal justice system characterized by a panoply of Constitutionally prescribed fair trial rights,  and adopted an administrative plea bargaining system in its stead.  Now, when the police round up the usual suspects, jail almost certainly will follow and without all of that unnecessary bother with trials.  Plea bargains are negotiated.  They proceed under the presumption that the defendant is guilty. The coercive pressure brought to bear on criminal defendants by the prosecutors, the courts, and even members of the defense bar, can overwhelm both free will and reason.  

Ironically, the growth of the still largely unregulated plea bargaining system with which we are presently burdened occurred simultaneously with implementation of the right to counsel under Gideon v. Wainwright, 372 U.S. 335 (1963).  The rights, inter alia, to remain silent, to present evidence and to be confronted with adverse evidence also underwent substantial development. In short, when the U.S. Supreme Court decided at long last to give teeth to the criminal due process rights enshrined in the U.S. Constitution, that is to say, when the guarantee to a fair trial became a real thing, the prosecutors' bar worked overtime trying to undermine the same by developing an ever more coercive plea bargaining system.  The argument was that it preserved judicial resources.  The underlying if unjustified assumption was that only the guilty would plead guilty.  Their political strategy has been so effective that criminal trials have become all but extinct.  You might find this report from the Innocence Project of interest in this regard.  Innocence Staff, Report: Guilty Pleas on the Rise, Criminal Trials on the Decline, Innocence Project (August 7, 2018)(accessed on February 16, 2025).

When I defend my clients' right to a fair trial, I am above all defending the Constitutions of the United States of America and of the State of New York.  What I hope to see is the renaissance of criminal due process undergirded by the foundational principle of the presumption of innocence.  It is, of course, for the U.S. Supreme Court and the N.Y. State Court of Appeals to restore the fair trial rights of our citizens.  In the meantime, I can and will use the tools available to me to ensure that the rights of my clients are protected to the best of my ability.  

Ultimately, we are all under an obligation to seek justice, most especially the prosecutorial bar, and I believe that we have fallen afoul of our duty to do so.  If we are to retain the title of a liberal democracy, this must change.

ATTORNEY ADVERTISING/LAW OFFICE OF BONNIE C. BRENNAN, Esq.

C.  So What Do Appellate Lawyers Do?

You've been to court already and you have been convicted of a crime or crimes pursuant to a trial.  So is that it?  No!

In the State of New York, you are guaranteed the right to pursue a single appeal before the Appellate Division.  Which Department will hear your appeal will depend on where your trial was held.  For instance, appeals from trials held in New York City will be brought before the First Department (Bronx and New York Counties) or Second Department (Kings and Queens Counties; Staten Island).    Appeals from trials held in Orange County, New York, will be heard by the Second Department, and those held in Ulster County, New York, will be heard by the Third Department, etc.

I will acquire the transcript of your trial and, having read it closely, identify appealable issues.  It is rare, but sometimes the best issue available is a challenge to the People's evidence on the theory that they did not meet the reasonable doubt standard.  Unfortunately, the Appellate Division dislikes reversing a jury's findings of fact which they hold sacrosanct and almost never rules that, based on the People's case below, the defendant should have been found not guilty.  

A better, but still difficult case, is to argue that there is new evidence not brought before the jury at trial.  If there is new evidence, I will first make a stop at the trial court where your case was heard, show that there is new evidence, and ask the trial court to reverse the prior conviction and hold a new trial.  If the trial court refuses, then I will go to Appellate Division and argue that a new trial should be held.

The most common appeal, however, is to argue that you did not get a fair trial.  The body of law regarding fair trials is vast and there just isn't room to go into it here.  Broadly, if we proceed with a fair trial question, we will be challenging a ruling of the court, something that the Appellate Division is not nearly so sensitive about reversing. Suffice it to say that this is where I, as your appellate attorney, earn my money.  It is my job to sort through the transcript, identify potential issues, and research them to see if they might bear fruit.  It is a longish process followed by writing the brief itself, another longish process.  Then I file your brief and we wait for the People to respond.  Once they have, we are off to court to argue your case.

And if we lose?  Then we petition the Court of Appeals to hear your case.  This time we don't get to go automatically.  The Court of Appeals gets a lot of petitions and selects among them.  Usually, the reason they select an appeal is not because, hold your hat, an injustice has been done.  They usually select a case because there is an unsettled area of the law in the State of New York and your case is somehow representative of the controversy they want to address.  Lousy, I know, but it is not impossible to clear that hurdle.

So we lose again.  Then we start looking at federal alternatives.  But enough for now.  You should have at least some idea of what your appellate lawyer's job is. And, I must fairly say, there is never a guarantee that we will succeed.  But, given your right to appeal, I think it is foolish not to try.

ATTORNEY ADVERTISING/LAW OFFICE OF BONNIE C. BRENNAN, Esq.

D.  But I Didn't Go to Trial.  I Took a Plea!

Pleas are a nasty business.  I know that trial attorneys often think that a plea is the best deal you will ever get.  But the plea bargaining process is coercive and frightened clients take pleas even when they are innocent.  It is coercive because the plea bargaining process assumes you are guilty.  This is true even though the Fifth Amendment of the U.S. Constitution has been interpreted to provide that you are presumed innocent until you are found guilty.  But when you take a plea, you give up nearly all of your constitutional rights.

Further, the People want the deal they make with you to be final and don't want to hear anything more from you.  So they will pressure you and your trial attorney to agree to a provision of the plea bargain wherein you waive your right to appeal.  At that point, we can look to see if the waiver is valid.

Other remedies available to a person that went to trial are also potentially available to you.  For instance, you feel that your trial attorney did not provide you with effective assistance of counsel.  Or perhaps, as we discussed in the case of trials, new evidence has come to light which would have impacted your decision to take a plea.  Other as yet unforeseen Constitutional issues concerning pleas are likely to arise over time precisely because most criminal cases end in a plea bargain.  As a result, the U.S. Supreme Court is investing more time in policing the constitutionality of plea bargains and the plea bargaining process.

So, even if you took a plea, indeed, even if you "waived" your right to appeal, it is still worth having an appellate attorney take a fresh look at your case.  

ATTORNEY ADVERTISING/LAW OFFICE OF BONNIE C. BRENNAN, Esq.

E.  I Was Convicted of a Sex Offense and Was Assigned a SORA Level 2 or 3.  Can I have it Reduced?

The answer is we can try.  Trial attorneys are often harried and perhaps do not invest the time into a SORA hearing that it deserves.  But, as you likely have already discovered, a SORA determination can have a major impact on your life.  I believe that it is absolutely worth challenging.  

It is helpful if we are involved at the ground level.  We can go in deep and defend against every point the People want the trial court to assess in determining what SORA level will be assigned to you.  If we don't get what we want, we can then appeal from a well developed record.  The more that the People are forced to put on the record, the more likely that there is an appealable issue for us to pursue.

Even if we don't come in at the time of the SORA hearing, there are still likely to be appealable issues.  The problem is that we are stuck with the record that your trial attorney made.  If it is not fully developed, the appeals court will not be all that happy with us trying to bring in, for instance, new and relevant studies that may bear on your case.  Never kept appellate attorneys from trying.  It is just not the ideal way to proceed.

So, do I think it is worth appealing?  I'd have to say, with respect, yes.

F.  Family Law Appeals.

I have also developed a body of experience writing appellate briefs on behalf of clients unhappy with their outcomes in Family Court including, but not limited to cases involving family offense petitions, orders of protection, custody proceedings and proceedings addressing the neglect and abuse of children.  

If you have already been to Family Court, then you know that you are entitled to an attorney, just as you are in the criminal courts of this state.  The rights that you are afforded in Family Court are, however, vastly more limited than your rights in a criminal proceeding even though the repercussions for you can be substantial.  This is especially true where the loss of the custody of your child or children is concerned.  In light of this fact, I believe that those rights should be expanded and the appellate process can play a pivotal role in achieving that goal.

I fully appreciate how deeply concerning these matters are to my clients, especially where children are involved.  In light of the emotional distress that you may sometimes experience in connection with your Family Court case, we take pride in a well developed bedside manner.  We answer your emails, take your calls and, more,  we listen.

G.  Support for Attorneys.

Finally, we continue to support criminal defense attorneys with researching and writing complex motions on topics such as, but not limited to, search and seizure and vacatur of criminal judgments (C.P.L. 440).  

ATTORNEY ADVERTISING/LAW OFFICE OF BONNIE C. BRENNAN, Esq.

H.  Brief Samples

CRIMINAL COURT:

APPELLANT'S BRIEF, People v. Darnell Ramsey, https://drive.google.com/file/d/1xxZn_yFro-DQDkBw2Qd4MpmdX6XniBL3/view?usp=share_link ;

RESPONDENT'S BRIEF, People v. Darnell Ramsey,  https://drive.google.com/file/d/12OeA_Y_aDca5Fqj0QGwR6zs8Q5nYgQkl/view?usp=share_link ;

REPLY BRIEF, People v. Darnell Ramsey, https://drive.google.com/file/d/1OU4K_ZEsvOcR4AifLC7U5Wh2Wu-_0BhH/view?usp=share_link ; and,

DECISION, People v. Darnell Ramsey (App. Div., 2d Dept.), https://drive.google.com/file/d/1AC9ZuLdBSwaUAKKjeI0Wmo51ngRdV8Ho/view?usp=share_link .

NOTE:  A positive outcome in any given case is not guaranteed.  Hence, you may receive a less desirable outcome than occurred in the above case.   

FAMILY COURT:

I.  Guest Blogs

Bonnie C. Brennan, "Human Rights Guest", Clancy Tucker Blog, August 5, 2013, https://clancytucker.blogspot.com/search?q=bonnie+c+brennan .

Bonnie C. Brennan, "Targeted Killings and Humanitarian Law", A Contrario, February 8, 2013, https://acontrarioicl.com/tag/bonnie-c-brennan/ .