Issues Before the Court:   Shanks was charged with a low level felony.  Prior to and during the trial, the judge appeared to be biased against him.  Amongst other things, the judge forced Shanks to go pro se at trial over his objection.  Even though Shanks had been through a number of assigned attorneys, all but two had asked to be relieved because of reasons unrelated to Shanks’ conduct.  With regard to two of the attorneys, they asked to be relieved  because of a breakdown in communication, but never claimed that Shanks had acted abusively.   Shanks was convicted after trial.  At sentencing, the prosecutor offered to recommend time served if Shanks waived his right to appeal.  The court then conducted a terrible appeal waiver which, amongst other things, characterized the appeal waiver as absolute – a big no-no, as held by the Court of Appeals decision in  People v. Thomas.   

On appeal, Shanks argued that (1) the waiver was invalid in light of Thomas. (2) Even if the waiver were somehow valid, it did not cover the deprivation of the right to counsel at trial.  (3) Shanks’ conduct did not act as a forfeiture of the right to be represented by counsel.  (4) The judicial bias claim also survived the appeal waiver and was meritorious.

Held: 

As a threshold matter, the waiver was invalid, as the colloquy and written waiver violated Thomas by suggesting the waiver was absolute.

Thus, in its characteristic fashion, the Court declined to reach the issue of whether even an otherwise valid waiver would have covered a claim of a complete deprivation of the right to counsel.

As to the merits, after reviewing the facts, the Court came to the obvious conclusion that Shanks’ conduct did not rise to the level of justifying a forfeiture of the right to counsel at trial.

Thus, in characteristic fashion, the Court felt it unnecessary to decide the judicial bias issue.

CAL Observes:

Stripped down to its essentials, the Court decided two unremarkable issues:  (1) Whether the waiver violated Thomas; clearly it did; the otherwise ridiculous aspects of the waiver, although highlighted in the Court’s factual review, was not made part of the Court’s holding.  And (2) whether Shanks’ conduct rose to the level of forfeiting the right to counsel, which it clearly did not.

The  Court, in its usual inappropriately cautious fashion–especially as to appeal waivers, skirted the important issue of whether even a valid waiver would have forfeited the complete deprivation of the right to counsel at trial. And whether a valid waiver would have forfeited an issue of judicial bias, and indeed whether the judge had been biased (he was).

The Court continues to hold back on laying down any unnecessary law on appeal waivers, even though such waivers play a role in 95% of all felony convictions Statewide.  Given the current makeup of the Court, this may be for the best, even though the law of appeal waivers has become, in light of the Court’s refusal to address such waivers, one of the most complex and vexatious issues in New York criminal jurisprudence.