N.Y. Comp. Codes R. & Regs. Tit. 9 § 516.12 - Appeals and review
(a)
Action by the State judge advocate.
(1) Cases
required to be referred to a Board of Military Review. The State judge advocate
must refer to the Board of Military Review the record in each trial by
court-martial which:
(i) the sentence, as
approved, extends to dismissal of an officer or cadet, dishonorable or
bad-conduct discharge, or confinement; and
(ii) the accused has not waived or withdrawn
appellate review.
(2)
Cases reviewed by the State judge advocate.
(i) Mandatory examination of certain general
courts-martial. Except when the accused has waived the right to appellate
review or withdrawn such review, the record of trial by a general court-martial
in which there has been a finding of guilty, the appellate review of which is
not provided for in paragraph (1) of this subdivision, must be examined in the
office of the staff judge advocate. If any part of the findings or sentence is
found unsupported in law, or, if reassessment of the sentence is appropriate,
the State judge advocate may modify or set aside the findings or sentence or
both. If the State judge advocate so directs, the records must be reviewed by
the Board of Military Review in accordance with N.Y.R.C.M. 1203. If the case is
forwarded to the Military Review, the accused must be informed and has the
rights under N.Y.R.C.M. 1202(b)(2).
(ii) Mandatory review of cases forwarded
under N.Y.R.C.M. 1112(g)(1). The State judge advocate must review each case
forwarded under N.Y.R.C.M. 1112(g)(1). On such review, the State judge advocate
may vacate or modify, in whole or in part, the findings or sentence, or both,
of a court-martial on the ground of newly discovered evidence, fraud on the
court-martial, lack of jurisdiction over the accused or the offense, error
prejudicial to the substantial rights of the accused, or the appropriateness of
the sentence.
(iii) Review by the
State judge advocate after final review.
(a)
In general. Notwithstanding N.Y.R.C.M. 1209, the State judge advocate may, sua
sponte or upon application of the accused or a person with authority to act for
the accused, vacate or modify, in whole or in part, the findings, sentence, or
both of a court-martial which has been finally reviewed, but has not been
reviewed by the Board of Military Review or by the State judge advocate under
subparagraph (i) of this paragraph, on the ground of newly discovered evidence,
fraud on the court-martial, lack of jurisdiction over the accused, or the
offense, error prejudicial to the substantial rights of the accused, or
appropriateness of the sentence (ML, 130.68[b]).
(b) Procedure. The State judge advocate must
provide procedure for considering all cases properly submitted under
subparagraph (iii) of this paragraph and may prescribe the manner by which an
application for relief under subparagraph (iii) of this paragraph may be made
and, if submitted by a person other than the accused, may require that the
applicant show authority to act on behalf of the accused.
(c) Time limits on applications. Any
application for review by the State judge advocate under ML, 130.68 must be
made on or before the last day of the two-year period beginning on the date the
sentence is approved by the convening authority, unless the accused establishes
good cause for failure to file within that time.
(iv) Rehearing. If the State judge advocate
sets aside the findings or sentence, the State judge advocate may, except when
the setting aside is based on lack of sufficient evidence in the record to
support the findings, order a rehearing. If the State judge advocate sets aside
the findings and sentence and does not order a rehearing, the State judge
advocate shall order that the charges be dismissed. If the State judge advocate
orders a rehearing but the convening authority finds a rehearing impractical,
the convening authority must dismiss the charges.
(3) Remission and suspension. The State judge
advocate may, when so authorized by the Chief of Staff to the Governor under
ML, 130.72 at any time remit or suspend the unexpected part of any sentence,
other than a sentence approved by the Governor.
(b) Appellate counsel.
(1) In general. The State judge advocate may
detail one or more officers as appellate counsel and must detail one or more
officers as appellate defense counsel.
(2) Duties.
(i) Appellate State counsel. Appellate State
counsel represent the State before the reviewing authority when directed to do
so by the State judge advocate.
(ii) Appellate defense counsel. Appellate
defense counsel represent the accused before the reviewing authority, the staff
judge advocate and the State judge advocate, when the accused is a party in the
case before such and requests to be represented by appellate defense counsel.
Appellate defense counsel is authorized to communicate directly with the accused. The accused is a party in the case when named as a party in pleadings before the reviewing authority or staff judge advocate or before the State judge advocate or, even if not so named, when the military judge is named as respondent in a petition by the government for extraordinary relief from a ruling in favor of the accused at trial.
(c) Review by the Board
of Military Review.
(1) In general. The State
judge advocate must establish a Board of Military Review composed of not less
than three officers of the organized militia or on the State reserve list or
State retired list, each of whom must be a member of the board of the State
(see ML, 130.65[a]). No member of the Board of Military Review can review the
record of any trial member of the court-martial before which such trial was
conducted, or served as military judge, trial or defense counsel, or reviewing
officer (see ML, 130.65[g]).
(2)
Cases reviewed by a Board of Military Review. A Board of Military Review must
review cases referred to it by the State judge advocate under N.Y.R.C.M.
1201(a) or (b)(1).
(3) Action on
cases considered by the Board of Military Review.
(i) In general. In a case referred to it, the
Board of Military Review may act only with respect to the findings and sentence
as approved by the convening authority. It may affirm only such findings of
guilty and the sentence or such part or amount of the sentence, as it finds
correct in law and fact and determines, on the basis of the entire record,
should be approved. In considering the record, it may weight the evidence,
judge the credibility of witnesses and determine controverted questions of
fact, recognizing that the trial court saw and heard the witnesses (ML,
130.65[c]).
(ii) Action when
sentence is set aside. If the Board of Military Review sets aside the findings
and sentence, it may, except where the setting aside is based on lack of
sufficient evidence in the record to support the findings, order a rehearing.
If it sets aside the findings and sentence and does not order a rehearing, it
must order that the charges be dismissed (ML, 130.65[d]).
(iii) Action subject to approval by Chief of
Staff to the Governor. The action taken by the Board of Military Review is
subject to the approval of the Chief of Staff to the Governor. If the Chief of
Staff to the Governor disapproves the action taken by the Board of Military
Review, he may take any action on the sentence or findings that could be taken
by the convening authority under ML, 130.60 (ML, 130.65[e]).
(iv) Action by the State judge advocate. The
State judge advocate shall, unless there is to be further action by the
Governor, instruct the convening authority to take action in accordance with
the decision of the Board of Military Review as approved by the Chief of Staff
to the Governor. If the Board of Military Review has ordered a rehearing but
the convening authority finds a rehearing impracticable, the convening
authority may dismiss the charges (ML, 130.65[f]).
(v) Action when accused lacks mental
capacity. An appellate authority may not affirm the proceedings while the
accused lacks mental capacity to understand and to conduct or cooperate
intelligently in the appellate hearings. In the absence of substantial evidence
to the contrary, the accused is presumed to have the capacity to understand and
to conduct or cooperate intelligently in the appellate proceedings. If a
substantial question is raised as to the requisite mental capacity of the
accused, the appellate authority may direct that the record be forwarded to an
appropriate authority for an examination of the accused in accordance with
N.Y.R.C.M. 706, that the examination may be limited to determining the
accused's present capacity to understand and cooperate in the appellate
proceedings. The order of the appellate authority will instruct the appropriate
authority as to permissible actions that may be taken to dispose of the matter.
If the record is thereafter returned to the appellate authority, the appellate
authority may affirm part or all of the findings or sentence unless it is
established, by a preponderance of the evidence--including matters outside the
record of trial--that the accused does not have the requisite mental capacity.
If the accused does not have the requisite mental capacity, the appellate
authority shall stay the proceedings until the accused regains appropriate
capacity, or take other appropriate action. Nothing in this paragraph shall
prohibit the appellate authority from making a determination in favor of the
accused which will result in the setting aside of a conviction.
(4) Notification to accused.
(i) Notification of decision. The accused
must be notified of the decision of the Board of Military Review.
(ii) Notification of right to petition the
Governor for review. The accused must be provided with a copy of the decision
of the Board of Military Review bearing an endorsement notifying the accused of
his right to petition the Governor for review. The endorsement must inform the
accused that such a petition:
(a) may be filed
only within 60 days form the earlier of:
(1)
the date on which the accused was notified of the decision of the Board of
Military Review and the approval of the Chief of Staff to the Governor;
or
(2) the date on which a copy of
the decision of the Board of Military Review and the approval of the Chief of
Staff to the Governor, after being served on counsel of record for the accused
(if any), is deposited in the United States mail for delivery by first class,
certified mail to the accused, at an address provided by the accused or, if no
such address has been provided by the accused, at the latest address noted for
the accused in his official service record (ML, 130.66[b]); and
(b) may be forwarded through the
officer immediately exercising general court- martial jurisdiction over the
accused and through the Chief of Staff to the Governor or filed directly with
the Governor.
(iii)
Receipt by the accused; disposition. The receipt by the accused of a copy of
the decision of the Board of Military Review, a certificate of service on the
accused, or the postal receipt for delivery of certified mail must be
transmitted in duplicate by expeditious means to the Chief of Staff to the
Governor. If the accused is personally served, the receipt or certificate of
service must show the date of service. The Chief of Staff to the Governor must
forward one copy of the receipt, certificate, or postal receipt to the Governor
when required by him.
(5) Cases not reviewed by the Governor. If
the accused has not timely petitioned the Governor to review the decision of
the Board of Military Review and approval by the Chief of Staff to the Governor
or, if the Governor has denied a petition for review, the State judge advocate
must:
(i) if the sentence affirmed by the
Board of Military Review includes a dismissal and is approved by the Chief of
Staff to the Governor, transmit the record, the decision of the Board of
Military Review and approval of the Chief of Staff to the Governor for action
under N.Y.R.C.M. 1205; or
(ii) if
the sentence affirmed by the Board of Military Review does not include a
dismissal, notify the convening authority, the officer exercising general
court-martial jurisdiction over the accused, or the Chief of Staff to the
Governor, as appropriate, who, subject to N.Y.R.C.M. 1113(c)(1), may order into
execution any unexecuted sentence affirmed by the Board of Military Review or
take other action, as authorized.
(d) Review by the Governor.
(1) Cases reviewed by the Governor. The
Governor shall review the record in all cases reviewed by a Board of Military
Review and approved by the Chief of Staff to the Governor in which, upon
petition by the accused and on good cause shown, the Governor grants such
review.
(2) Counsel to assist the
accused in connection with review by the Governor. When the accused is notified
of the right to forward a petition for review by the Governor, if requested by
the accused, associate counsel qualified under N.Y.R.C.M. 502(d)(1) must be
detailed to advise and assist the accused in connection with preparing a
petition for further appellate review.
(3) Action on cases reviewed by the Governor.
(i) In general. In any case reviewed by him,
the Governor may act only with respect to the findings and sentences as
approved by the convening authority and as affirmed or set aside as incorrect
in law by the Board of Military Review. He may affirm only such findings of
guilty in the sentence or such part or amount of the sentence, as he finds
correct in law and fact and determines, on the basis of the entire record,
should be approved. In considering the record, he may weigh the evidence, judge
the credibility of witnesses and determine controverted questions of fact,
recognizing that the trial court saw and heard the witnesses (ML,
130.66).
(ii) Action when sentence
is set aside. If the Governor set aside the findings and sentence, he may,
except where the setting aside is based on lack of sufficient evidence in the
record to support the findings, order a rehearing. If he sets aside the
findings and sentence, and does not order a rehearing, he must order that the
charges be dismissed. If the Governor has ordered a rehearing, but the
convening authority finds a rehearing impracticable, he may dismiss the
charges.
(e)
Powers and Responsibilities of the Chief of Staff to the Governor.
(1) Sentences requiring approval by the Chief
of Staff to the Governor. No part of a sentence extending to dismissal of an
officer may be executed until approved by the Chief of Staff to the
Governor.
(2) Remission and
suspension.
(i) In general. The Chief of
Staff to the Governor may commute, remit or suspend all or any part or amount
of the unexecuted part of any sentence, including all uncollected forfeitures,
other than a sentence approved by the Governor.
(ii) Substitution of discharge. The Chief of
Staff to the Governor may, for good cause, substitute an administrative
discharge for a discharge or dismissal executed in accordance with the sentence
of a court-martial.
(f) Restoration.
(1) New trial. All rights, privileges and
property affected by an executed part of a court-martial sentence which has
been set aside or disapproved, except an executed dismissal or discharge, must
be restored unless a new trial or rehearing is ordered and such executed part
is included in a sentence imposed upon the new trial or rehearing (ML,
130.73[a] Restoration).
(2)
Administrative discharge.
(i) Dishonorable or
bad-conduct discharge. If a previously executed sentence of dishonorable or
bad-conduct discharge is not imposed on a new trial, the Chief of Staff to the
Governor shall substitute therefor a form of discharge authorized for
administrative issuance unless the accused is to serve out the remainder of his
enlistment.
(ii) Dismissal. If a
previously executed sentence of dismissal is not imposed on a new trial, the
Chief of Staff to the Governor shall substitute therefor a form of discharge
authorized for administrative issue, and the officer dismissed by the sentence
may be reappointed by the opinion of the Governor alone to such commissioned
grade and with such rank as in the opinion of the Governor that former officer
would have attained had he not been dismissed. The reappointment of such a
former officer must be consistent with Federal regulations (ML,
130.73[c]).
(g) Finality of courts-martial.
(1) When a conviction is final. A
court-martial conviction is final when:
(i)
Review is completed by a Board of Military Review and approved by the Chief of
Staff to the Governor; and
(a) the accused
does not file a timely petition for review by the Governor;
(b) a petition for review is denied or
otherwise rejected by the Governor.
(ii) In cases not reviewed by a Board of
Military Review:
(a) the findings and sentence
have been found legally sufficient by a judge advocate and, when action by such
officer is required, have been approved by the officer exercising general
court-martial jurisdiction over the accused at the time the court-martial was
convened (or that officer's successor); or
(b) the findings and sentence have been
affirmed by the State judge advocate when review by the State judge advocate is
required under N.Y.R.C.M. 1112(g)(1) or 1201(b)(1).
(2) Effect of finality. The
appellate review of records of trial provided by the code, the proceedings,
findings and sentences of courts-martial as approved, reviewed or affirmed as
required by the code, and all dismissals and discharges carried into execution
under sentences by courts-martial following approval, review, or affirmation is
required by the code, are final and conclusive. Orders publishing the
proceedings of courts-martial and all action taken pursuant to those
proceedings are binding upon all departments, courts, agencies, and officers of
the State, subject only to action upon a petition for a new trial under ML,
130.71 or action by the Chief of Staff to the Governor as provided in ML,
130.72 and the authority of the Governor (ML, 130.74).
(h) New trial.
(1) In general. At any time within two years
after approval by the convening authority of a court-martial sentence, the
accused may petition the State judge advocate for a new trial on the ground of
newly discovered evidence or fraud on the court-martial. A petition may not be
submitted after the death of the accused.
(2) Who may petition. A petition for a new
trial may be submitted by the accused personally, or by the accused's counsel,
regardless of whether the accused has been separated from the
service.
(3) Form of petition. A
petition for a new trial in triplicate, is to be written and signed under oath
or affirmation by the accused, by a person possessing the power of attorney of
the accused for that purpose, or by a person with the authorization of an
appropriate court to sign the petition as the representative of the accused.
The petition must contain the following information, or an explanation why such
matters are not included:
(i) the name,
service number and current address of the accused;
(ii) the date and location of the
trial;
(iii) the type of
court-martial and the title or position of the convening authority;
(iv) the sentence or a description thereof as
approved or affirmed, with any later reduction thereof by clemency or
otherwise;
(v) the request for the
new trial;
(vi) a brief description
of any findings or sentence believed to be unjust;
(vii) a full statement of the newly
discovered evidence or fraud on the court-martial which is relief upon for the
remedy sought;
(viii) affidavits
pertinent to the matters in subparagraph (vi) of this paragraph; and
(ix) the affidavit of each person whom the
accused expects to present as a witness in the event of a new trial. Each such
affidavit should set forth briefly facts within the personal knowledge of the
witness.
(4) Effect of
petition. The submission of a petition for a new trial does not stay the
execution of a sentence.
(5) Who
may act on petition. If the accused's case is pending before a Board of
Military Review or the Governor, the State judge advocate must refer the
petition to that board or to the Governor, as appropriate, for action.
Otherwise, the State judge advocate must act on the petition (ML,
130.71).
(6) Grounds for new trial.
(i) In general. A new trial may be granted
only on grounds of newly discovered evidence of fraud on the
court-martial.
(ii) Newly
discovered evidence. A new trial cannot be granted on the grounds of newly
discovered evidence unless the petition shows that:
(a) the evidence was discovered after the
trial;
(b) the evidence is not such
that it would have been discovered by the petitioner at the time of trial in
the exercise of due diligence; and
(c) the newly discovered evidence, if
considered by a court-martial in the light of all other pertinent evidence,
would probably produce a substantially more favorable result for the
accused.
(iii) Fraud on
court-martial. No fraud on the court-martial warrants a new trial unless it had
a substantial contributing effect on a finding of guilty or the sentence
adjudged.
(7) Action on
the petition. The authority considering the petition may cause such additional
investigation to be made and such additional information to be secured as that
authority believes appropriate. Upon written request, and in its discretion,
the authority considering the petition may permit oral argument on the matter.
If the State judge advocate or a Board of Military Review believes meritorious
grounds for relief under ML, 130.72 have been established but that a new trial
is not appropriate, he or she may act under ML, 130.72 if authorized to do so,
or transmit the petition and related papers to the Chief of Staff to the
Governor with a recommendation. The State judge advocate may also, in cases
which have been finally reviewed but have not been reviewed by a Board of
Military Review, act under ML, 130.68.
(8) Action when new trial is granted.
(i) Forwarding to convening authority. When a
petition for a new trial is granted, the State judge advocate must select and
forward the case to a convening authority for disposition.
(ii) Charges at new trial. At a new trial,
the accused may not be tried for any offense of which the accused was found not
guilty or upon which the accused was not tried at the earlier
court-martial.
(iii) Action by
convening authority. The convening authority's action on the record of a new
trial is the same as in other court-martial.
(iv) Disposition of record. The disposition
of the record of a new trial is the same as for other courts-martial.
(v) Court-martial orders. Court-martial
orders promulgating the final action taken as a result of a new trial,
including any restoration of rights, privileges and property is promulgated in
accordance with N.Y.R.C.M. 1114.
(vi) Action by persons charged with execution
of the sentence. Persons charged with the administrative duty of executing a
sentence adjudged upon a new trial after it has been ordered and executed must
credit the accused with any executed portion or amount of the original sentence
included in the new sentence in computing the term of the amount of punishment
actually to be executed pursuant to the sentence.
Notes
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