| Matter of Knight v Knight |
| 2009 NY Slip Op 00688 [59 AD3d 445] |
| February 3, 2009 |
| Appellate Division, Second Department |
| In the Matter of Patricia A. Knight,Respondent, v Kenneth M. Knight, Appellant. |
—[*1]
In a family offense proceeding pursuant to Family Court Act article 8, the husband appealsfrom an order of the Family Court, Rockland County (Warren, J.), dated December 5, 2007,which, after a hearing, found that, on three separate dates, he had violated the terms of an orderof protection, dated September 18, 2007, and committed him to the custody of the RocklandCounty Jail for three consecutive terms of six months incarceration.
Ordered that the order dated December 5, 2007 is reversed, on the law, without costs ordisbursements, and the matter is remitted to the Family Court, Rockland County, for a newhearing and determination of the petition.
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 McGregor v Bacchus, 54 AD3d 678 [2008]; Matter of Jetter v Jetter, 43 AD3d821, 822 [2007]). That party, however, may waive the right to counsel, provided that thewaiver is knowing, voluntary, and intelligent (see People v Arroyo, 98 NY2d 101, 103[2002]; People v Smith, 92 NY2d 516, 520 [1998]; Matter of McGregor v Bacchus, 54 AD3d 678, 678-679 [2008]; Matter of Jetter v Jetter, 43 AD3d821, 822 [2007]). To ensure a valid waiver, the court must conduct a "searching inquiry" ofthat party (People v Slaughter, 78 NY2d 485, 491 [1991]; see People v Arroyo,98 NY2d 101, 103 [2002]). While there is no rigid formula to be followed in such an inquiry,and the approach is a flexible one (seePeople v Providence, 2 NY3d 579, 583 [2004]), the record must demonstrate that theparty " 'was aware of the dangers and disadvantages of proceeding without counsel' " (People v Providence, 2 NY3d579, 582 [2004], quoting [*2]People v Slaughter, 78NY2d 485, 492 [1991]; see Matter ofGuzzo v Guzzo, 50 AD3d 687, 688 [2008]).
Here, the Family Court failed to conduct a "searching inquiry" of the husband and failed toadvise him of the risks of self-representation. Thus, there was no knowing, voluntary, andintelligent waiver of the right to counsel (see Matter of Guzzo v Guzzo, 50 AD3d 687, 688 [2008]; Matter of Jetter v Jetter, 43 AD3d821, 822 [2007]). Accordingly, the order must be reversed, and the matter remitted to theFamily Court, Rockland County, for a new hearing and determination of the petition.
In light of our determination, we do not consider the husband's remaining contention. Rivera,J.P., Angiolillo, Carni and McCarthy, JJ., concur.