| Matter of Melissa H. v Shameer S. |
| 2012 NY Slip Op 07887 [100 AD3d 535] |
| November 20, 2012 |
| Appellate Division, First Department |
| In the Matter of Melissa H., Respondent, v Shameer S.,Appellant. |
—[*1] Yisroel Schulman, New York Legal Assistance Group, New York (Amanda Beltz ofcounsel), for respondent.
Order of disposition, Family Court, Bronx County (James E. d'Auguste, J.), entered on orabout December 21, 2011, which, after a fact-finding hearing, determined that respondent fatherhad committed acts constituting the family offenses of aggravated harassment in the seconddegree and assault in the second degree against petitioner mother, and, after a finding ofaggravated circumstances, issued a five-year order of protection against him, unanimouslyreversed, on the law, without costs, the orders vacated, and the matter remitted for a new hearing.
The fact-finding hearing was procedurally flawed and unfair to respondent. The court failedto conduct a "searching inquiry" to ensure that respondent knowingly, intelligently, andvoluntarily waived his statutory right to counsel (see Family Ct Act § 262 [a] [ii];People v Arroyo, 98 NY2d 101, 103 [2002]; People v Slaughter, 78 NY2d 485,491 [1991]). Further, the court concluded, without reviewing any financial documentation, thatrespondent was ineligible for assigned counsel. The court asked him only if he wished to havethe matter adjourned so that he could retain counsel at his own expense. When respondentanswered in the negative, the court proceeded to ask him questions relevant to the then-pendingcompeting petitions for custody of the parties' children. There is no indication that respondentunderstood that from this point on the preliminary hearing would become the fact-finding hearingwith respect to the family offense petition.
Moreover, although respondent had asked to make a statement in response to allegationsmade by petitioner, there is no indication that he understood that upon doing so, the court wouldthen transform his statements into his testimony for purposes of the fact-finding hearing on thefamily offense petition. The court had cautioned respondent that what he said could be usedagainst him in the pending criminal case, but assured him that the court would not hold what hesaid against him in this proceeding. However, the court did just that. In addition, rather thanhaving to first present a prima facie case in support of the allegations in her petition, the [*2]petitioner was allowed to respond only to respondent's version ofevents (see generally Matter of MelindM. v Joseph P., 95 AD3d 553, 555 [1st Dept 2012]). In light of the above finding, weneed not reach the other issues raised by respondent. Concur—Mazzarelli, J.P., Sweeny,Moskowitz, Renwick and Freedman, JJ. [Prior Case History: 2011 NY Slip Op52536(U).]