People v Shanks
NY Slip Op 05450
Decided October 12, 2021
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Issue:
Defendant-Attorney Conflict Results in Forfeiture of Right to Counsel
Whether defendant Shanks 1) forfeited his right to counsel when, after his attorney withdrew representation due to illness, Shanks was assigned three attorneys who were relieved due to conflicts, and two attorneys who were relieved due to defendant’s behavior, and 2) whether defendant validly waived his right to appeal when the waiver contained mischaracterizations of the scope of the waived appellate rights.
Holding:
Defendant Did Not Forfeit His Right to Counsel
The Court of Appeals held 1) that defendant did not forfeit his right to counsel and 2) that he did not validly waive his right to appeal.
Facts:
Defendant Shanks was charged by indictment with grand larceny in the third degree for wrongfully obtaining insurance payments. He appeared in County Court accompanied by his attorney Assistant Public Defender Ryan Miosek, who was later relieved for conflict of interest. Defendant was then represented by attorney David K. Taylor who later sought to withdraw from representing defendant due to illness and hospitalization. County Court then appointed Lauren Cady Carlson to represent Shanks, who could not represent him due to a conflict. County Court then appointed Joseph Scott, who could not represent defendant because he was leaving New York and would no longer practice law in the state. Next, County Court appointed Diane DiStefano who, after two months, requested to be relieved because defendant “holler[ed] at” her and conversations with him “did not go well.” DiStefano insisted that she could not communicate with defendant, or “even discuss the case with him, let alone prepare him for trial.” County Court accused defendant of abusing his attorneys, and “purposely or inadvertently” causing delays in the proceedings. The court told Shanks that DiStefano was the third attorney who asked to be relieved because of his behavior, though Miosek and Carlson were relieved due to conflicts of interest, Scott because he was leaving New York, and Taylor because of his illness.
Defendant was next appointed Lee C. Hartjen who, after three months, sought permission to be relieved citing defendant’s behavior and unwillingness to prepare for trial. Hartjen explained that defendant had become agitated with staff and had accused Hartjen of incompetence and malpractice. County Court relieved Hartjen and refused to assign another attorney to represent Shanks, and instead assigned Dennis B. Laughlin as “legal advisor” or standby counsel, forcing defendant to represent himself. Shanks told County Court that he was not capable of defending himself, and County Court informed him that matters had “come to this point…because [he] told [attorneys] how [he] wanted [his] defense to be presented.” Defendant declined to question prospective jurors and informed them that he was “definitely not qualified to try this case,” which prompted curative instructions from County Court that defendant was uncooperative and “unwilling to assist in his defense.”
The jury found defendant guilty. After retaining another attorney, defendant filed a motion to set aside the verdict pursuant to CPL 330.30, which included an argument based on violation of defendant’s right to counsel. At sentencing, the People indicated that if defendant would withdraw the motions, they would recommend a sentence of time served. County Court explained that defendant would be “withdrawing the motions in their entirety,” and would be giving up “the right to appeal any issue relating to his conviction and ultimately his sentence.” On appeal, defendant contended that appeal waiver was invalid and that his claim of Sixth Amendment violation of right to counsel survived the waiver. He argued that County Court violated his constitutional rights in forcing him to represent himself at trial, that he had not forfeited his right to counsel, that the curative instruction about his refusal to cooperate with counsel constituted reversible error, and that County Court was impermissibly biased. The Appellate Division ruled that defendant’s appeal waiver was valid and affirmed the judgment. Though the Court assumed his right to counsel argument survived the appeal waiver, the Appellate Division held that defendant’s behavior with successive assigned counsel had indeed forfeited his right to counsel.
Analysis:
Appeal Waivers Must Clarify Rights Waived
The Court of Appeals held that defendant’s waiver did not contain clarifying language “that appellate review remained available for certain issues.” Indeed, the written appeal wavier the colloquy “utterly failed to indicate that some rights to appeal would survive the waiver.” The appeal, therefore, mischaracterized the nature of the waiver of appeal by suggesting that the waiver included an absolute bar to the taking of a first-tier direct appeal and the loss of attendant rights to counsel and poor person relief (see Bisono, 36 NY3d at 1017-1018; see generally People v Grimes, 32 NY3d 302, 311-312 [2018]). Because of these mischaracterizations, the Court cannot be certain that defendant understood the nature of the waiver, which renders it not enforceable.
Egregious Conduct Can Lead to Forfeiture of Right to Counsel; Defendant’s Behavior Falls Short of ‘Egregious’
The Court of Appeals has recognized that egregious conduct can lead to deemed forfeiture of the right to counsel but only as a matter of “extreme, last-resort…analysis.” (People v Smith, 92 NY2d 516, 521 [1998]). The Court has not stipulated as to the level of misconduct by a defendant that warrants such a drastic measure, but forfeiture has been upheld by intermediate appellate courts where the record demonstrated physically abusive and threatening acts by the defendants toward their counsel. A defendant may forfeit the right to counsel because of a “persistent course of egregious conduct toward successive assigned counsel, consisting of threats and other abusive behavior” (People v Cooper, 128 AD3d 1431, 1433 [4th Dept 2015]).
The record in this case fails to establish “egregious conduct” by defendant, as mere raised voices, vociferous disagreement over strategy, or accusations of incompetence do not rise to the level of egregious conduct constituting forfeiture of the right to counsel. A defendant does not forfeit the right to counsel by being argumentative or uncooperative or by moving to reassign counsel “as a mere dilatory tactic” (People v Isaac, 121 AD3d 816, 817-818 [2d Dept 2014]). The Court of Appeals explained that “the right to counsel would be almost meaningless if every defendant who quarreled with their attorney about their defense or attempted to delay the proceedings forfeited the right to counsel.”
Furthermore, the Court explained that only two attorneys asked to be relieved due to difficulties with defendant, and that those complaints did not allude to threats or abusive conduct. The other attorneys who were relieved cited conflicts of interest, illness, or departure from the state—factors that were beyond defendant’s control. There is no support, the Court held, for the determination that defendant’s conduct with successive counsel was so egregious as to constitute forfeiture of right to counsel. The order of the Appellate Division was therefore reversed, and a new trial was ordered.