N.Y. Comp. Codes R. & Regs. tit. 9 § 516.12

Current through Register Vol. 46, No. 25, June 18, 2024

Section 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(ii) the accused has not waived or withdrawn appellate review.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 Except when the accused has waived the right to appellate review or withdrawn such review, the record of trial by a general court-martial in which there has been a finding of guilty, the appellate review of which is not provided for in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.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 516.12