| Matter of Guzzo v Guzzo |
| 2008 NY Slip Op 03006 [50 AD3d 687] |
| April 1, 2008 |
| Appellate Division, Second Department |
| In the Matter of Susanne Guzzo, Respondent, v BarneyGuzzo, Appellant. |
—[*1] Courten & Villar, PLLC, Hauppauge, N.Y. (Dorothy A. Courten of counsel), forrespondent.
In a family offense proceeding pursuant to Family Court Act article 8, the husband appealsfrom an amended order of protection of the Family Court, Suffolk County (Hoffmann, J.), datedJuly 27, 2007, issued after a hearing.
Ordered that the amended order of protection is reversed, on the law, without costs ordisbursements, and the matter is remitted to the Family Court, Suffolk County, for a new hearingand determination in accordance herewith; and it is further,
Ordered that the temporary order of protection dated July 23, 2007, is reinstated pending thenew determination.
A party in a proceeding pursuant to Family Court Act article 8 has the right to be representedby counsel (see Family Ct Act § 262 [a] [ii]; Matter of Jetter v Jetter, 43 AD3d 821, 822 [2007]). That right maybe waived, however, and a party wishing to do so may proceed without counsel (see People vArroyo, 98 NY2d 101, 103 [2002]; Matter of Jetter v Jetter, 43 AD3d at 822). Beforeallowing a party to proceed pro se, the court must decide whether the waiver is made knowingly,voluntarily, and intelligently (see People v Arroyo, 98 NY2d at 103; People vSlaughter, 78 NY2d 485, 491 [1991]; Matter of Jetter v Jetter, 43 AD3d at 822). Inorder to make that evaluation, the court must conduct a "searching inquiry" of the party whowishes to proceed pro se (People v Slaughter, 78 NY2d 485, 491 [1991]; Matter ofJetter v Jetter, 43 AD3d at 822). While there is no "rigid formula" to be followed [*2]in such an inquiry, and the approach is a flexible one (see People v Providence, 2 NY3d579, 583 [2004]), the record must demonstrate that the party "was aware of the dangers anddisadvantages of proceeding without counsel" (People v Providence, 2 NY3d at 582[internal quotation marks omitted]; Matter of Jetter v Jetter, 43 AD3d at 822).
In this case, the appellant appeared without counsel in the Family Court in response to theinstant petition. At that time, he was represented by counsel in the parties' pending matrimonialproceeding. When he stated that he could not afford counsel in the instant proceeding, the FamilyCourt allowed him to proceed to the hearing on the petition, pro se, without conducting anyinquiry whatsoever. The appellant's financial condition was not explored, and he was not advisedof his right to have counsel assigned. He was not advised of the risks of self-representation. Thus,there was no knowing, voluntary, and intelligent waiver of the right to counsel (see Matter ofJetter v Jetter, 43 AD3d at 822). Accordingly, the amended order of protection must bereversed and the matter remitted to the Family Court, Suffolk County, for a new hearing anddetermination. Rivera, J.P., Lifson, Florio and Chambers, JJ., concur.