| Matter of Jetter v Jetter |
| 2007 NY Slip Op 06546 [43 AD3d 821] |
| September 4, 2007 |
| Appellate Division, Second Department |
| In the Matter of Grecia Jetter, Respondent, v Barry Jetter,Appellant. |
—[*1] Michael B. Palillo, P.C., New York, N.Y., for respondent.
In a family offense proceeding pursuant to Family Court Act article 8, the husband appealsfrom an order of protection of the Family Court, Kings County (Silber, J.), dated February 9,2006, which, after a hearing, directed him to refrain from, inter alia, committing any criminaloffense against the wife until February 8, 2008.
Ordered that the order of protection is reversed, on the law, without costs or disbursements,and the matter is remitted to the Family Court, Kings County, for a new hearing anddetermination in accordance herewith; and it is further,
Ordered that the temporary order of protection dated November 30, 2005 is reinstatedpending the new determination.
A party in a Family Court Act article 8 proceeding has the right to be represented by counsel(see Family Ct Act § 262 [a] [ii]; Matter of Otto v Otto, 26 AD3d 498, 499 [2006]). That party,however, can waive the right to counsel and opt for self-representation (see People vArroyo, 98 NY2d 101, 103 [2002]; People v Smith, 92 NY2d 516, 520 [1998];People v Anderson, 125 AD2d 580, 581 [1986]). Prior to permitting a party to proceedpro se, the court must determine that the decision to do so is made knowingly, intelligently, andvoluntarily (see People v Arroyo, supra). To ascertain whether a party's waiver of counselmeets these requirements, the court must conduct a "searching inquiry" of that party (People vSlaughter, 78 NY2d 485, 491 [1991]). Although there is no "rigid formula" as to thequestions the court needs to ask for counsel waivers, there must be a showing that the party "was[*2]aware of the dangers and disadvantages of proceedingwithout counsel" (People vProvidence, 2 NY3d 579, 582-583 [2004] [internal quotation marks omitted]).
Here, the Family Court failed to advise the husband of the risks of self-representation. Assuch, there was no knowing, intelligent, and voluntary waiver of counsel (see People vArroyo, supra; People v Smith, supra; Matter of Hassig v Hassig, 34 AD3d 1089 [2006]; Matter ofRachel P., 286 AD2d 868 [2001]). Accordingly, we reverse the order of protection and remitthe matter to the Family Court, Kings County, for a new hearing and determination.
The husband's remaining contention is without merit. Spolzino, J.P., Santucci, Florio andAngiolillo, JJ., concur.