Opinion
2014-07732 (Docket No. O-8765-13)
07-15-2015
In the Matter of Cynthia H. NIXON, respondent, v. Raymond CHRISTIAN, appellant.
Cabelly & Calderon, Jamaica, N.Y. (Lewis S. Calderon of counsel), for appellant. Jennifer Hersh, Jamaica, N.Y., for respondent.
Cabelly & Calderon, Jamaica, N.Y. (Lewis S. Calderon of counsel), for appellant.
Jennifer Hersh, Jamaica, N.Y., for respondent.
Opinion Appeal from an order of protection of the Family Court, Queens County (Dennis Lebwohl, J.), dated July 7, 2014. The order of protection directed Raymond Christian to stay away from Cynthia H. Nixon until and including July 6, 2016.
ORDERED that the order of protection is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Queens County, for a new hearing and determination on the petition in accordance herewith, with all convenient speed; and it is further,
ORDERED that the temporary order of protection dated May 5, 2014, is reinstated pending the new determination.
A party in a proceeding pursuant to Family Court Act article 8 has the right to be represented by counsel (see Family Ct. Act § 262[a][ii] ; Matter of McGregor v. Bacchus, 54 A.D.3d 678, 863 N.Y.S.2d 260 ), but may waive that right provided that he or she does so knowingly, intelligently, and voluntarily (see Matter of Cerquin v. Visintin, 118 A.D.3d 987, 988, 989 N.Y.S.2d 57 ; Matter of Tumminello v. Tumminello, 82 A.D.3d 992, 993, 918 N.Y.S.2d 735 ; Matter of Spencer v. Spencer, 77 A.D.3d 761, 908 N.Y.S.2d 597 ; Matter of McGregor v. Bacchus, 54 A.D.3d at 678–679, 863 N.Y.S.2d 260 ). To determine whether a party is validly waiving the statutory right to counsel, the Family Court must conduct a “searching inquiry” to ensure that the waiver is unequivocal, voluntary, and intelligent (Matter of Jung [State Commn. on Jud. Conduct], 11 N.Y.3d 365, 373, 870 N.Y.S.2d 819, 899 N.E.2d 925 [internal quotation marks omitted]; see Matter of Cerquin v. Visintin, 118 A.D.3d at 988, 989 N.Y.S.2d 57 ; Matter of Rosof v. Mallory, 88 A.D.3d 802, 930 N.Y.S.2d 901 ; Matter of Spencer v. Spencer, 77 A.D.3d at 761–762, 908 N.Y.S.2d 597 ; Matter of McGregor v. Bacchus, 54 A.D.3d at 679, 863 N.Y.S.2d 260 ; see also Matter of Melissa H. v. Shameer S., 100 A.D.3d 535, 955 N.Y.S.2d 3 ). A waiver is valid where the record reveals that the party was aware of the dangers and disadvantages of proceeding without counsel (see Matter of Cerquin v. Visintin, 118 A.D.3d at 988, 989 N.Y.S.2d 57 ; Matter of Rosof v. Mallory, 88 A.D.3d at 802, 930 N.Y.S.2d 901 ; Matter of McGregor v. Bacchus, 54 A.D.3d at 679, 863 N.Y.S.2d 260 ). The deprivation of a party's right to counsel, as guaranteed by Family Court Act § 262, requires reversal, without regard to the merits of the unrepresented party's position (see Matter of Pugh v. Pugh, 125 A.D.3d 663, 2 N.Y.S.3d 608 ; Matter of Cerquin v. Visintin, 118 A.D.3d at 988, 989 N.Y.S.2d 57 ; Matter of Savoca v. Bellofatto, 104 A.D.3d 695, 960 N.Y.S.2d 212 ; Matter of Belmonte v. Batista, 102 A.D.3d 682, 683, 961 N.Y.S.2d 174 ; Matter of Collier v. Norman, 69 A.D.3d 936, 937, 892 N.Y.S.2d 793 ).
Here, the record is clear that the appellant did not wish to proceed pro se, but was forced to do so in light of his alleged inability to produce the necessary paperwork in order to be assigned counsel (see Matter of Pugh v. Pugh, 125 A.D.3d at 664, 2 N.Y.S.3d 608 ; Matter of Broome
County Dept. of Social Servs. v. Basa, 56 A.D.3d 1092, 869 N.Y.S.2d 636 ). The deprivation of the appellant's fundamental right to counsel requires reversal, without regard to the merits of his position, especially where, as here, the record demonstrates that the appellant did not have a basic understanding of court proceedings (see Matter of Pugh v. Pugh, 125 A.D.3d at 664, 2 N.Y.S.3d 608 ; Matter of Cerquin v. Visintin, 118 A.D.3d at 989, 989 N.Y.S.2d 57 ; Matter of Otto v. Otto, 26 A.D.3d 498, 810 N.Y.S.2d 214 ).
Accordingly, we remit the matter to the Family Court, Queens County, for a new hearing, where the appellant either appears with counsel, knowingly, intelligently, and voluntarily waives his right to counsel, or requests that counsel be assigned, if appropriate, and a new determination on the petition thereafter.
RIVERA, J.P., DICKERSON, COHEN and BARROS, JJ., concur.