| Matter of McGregor v Bacchus |
| 2008 NY Slip Op 06714 [54 AD3d 678] |
| September 2, 2008 |
| Appellate Division, Second Department |
| In the Matter of Nadine McGregor,Respondent, v Sylvanus A. Bacchus, Appellant. |
—[*1] Robert Marinelli, Brooklyn, for respondent.
In a family offense proceeding pursuant to Family Court Act article 8, Sylvanus A. Bacchusappeals from an order of protection of the Family Court, Kings County (O'Shea, J.), dated May15, 2007, which, after a hearing, directed him, inter alia, to stay away from the petitioner untilMay 14, 2009.
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, with all convenient speed, in accordance herewith. Pending the newdetermination, the order of protection shall remain in effect as a temporary order of protection.
When the appellant appeared in the Family Court in response to a family offense petition, hisassigned counsel questioned whether, in light of his financial circumstances, he was entitled toassigned counsel. After an inquiry, the Family Court determined that the appellant was not, infact, entitled to assigned counsel because he owned his own business. The appellant stated thathe would represent himself because he could not afford to pay an attorney. Without making anyinquiry as to the appellant's appreciation of what it meant to proceed pro se, the Family Courtrelieved assigned counsel and permitted the appellant to represent himself.
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 Guzzo v Guzzo, 50 AD3d 687 [2008]; Matter of Jetter [*2]v Jetter, 43 AD3d 821, 822 [2007]), but may waive thatright, provided that he or she does so knowingly, voluntarily, and intelligently (see Matter of Guzzo v Guzzo, 50AD3d 687 [2008]; Matter of Jetter v Jetter, 43 AD3d at 822; cf. People v Arroyo,98 NY2d 101, 103 [2002]; People v Slaughter, 78 NY2d 485, 491 [1991]). In orderto determine whether a party is validly waiving the right to counsel, the court must conduct a"searching inquiry" of the party who wishes to waive that right and thus proceed pro se(People v Slaughter, 78 NY2d at 491; see People v Sawyer, 57 NY2d 12, 21[1982]; Matter of Guzzo v Guzzo,50 AD3d 687 [2008]; Matter of Jetter v Jetter, 43 AD3d at 822). While there isno "rigid formula" to be followed in such an inquiry, and the approach is flexible (People v Providence, 2 NY3d 579,583 [2004]), the record must demonstrate that the party "was aware of the dangers anddisadvantages of proceeding without counsel" (People v Providence, 2 NY3d at 583,quoting People v Slaughter, 78 NY2d 485, 492 [1991]; see Matter of Guzzo v Guzzo, 50AD3d 687 [2008]; Matter of KristinR.H. v Robert E.H., 48 AD3d 1278 [2008]; Matter of Jetter v Jetter, 43 AD3d at822). Here, the record is inadequate to demonstrate that the appellant validly waived his right tocounsel. After determining that the appellant was not entitled to assigned counsel, the courtgranted counsel's request to be relieved and permitted the appellant to proceed pro se, withoutany inquiry at all into whether the appellant appreciated the value of the right he was waiving andthe "dangers and disadvantages" of representing himself (People v Providence, 2 NY3d at583; see Matter of Guzzo v Guzzo,50 AD3d 687 [2008]; Matter ofOtto v Otto, 26 AD3d 498, 499 [2006]). Consequently, the order of protection must bereversed, and the matter remitted to the Family Court for a new hearing and determination after aproper inquiry into whether the appellant understands the consequences of representing himself.
The appellant's remaining contention is without merit. Spolzino, J.P., Fisher, Carni andDickerson, JJ., concur.