IN RE: Grecia JETTER (2007)

In a family offense proceeding pursuant to Family Court Act article 8, the husband appeals from an order of protection of the Family Court, Kings County (Silber, J.), dated February 9, 2006, which, after a hearing, directed him to refrain from, inter alia, committing any criminal offense against the wife until February 8, 2008.

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 and determination in accordance herewith;  and it is further,

ORDERED that the temporary order of protection dated November 30, 2005, is reinstated pending the new determination.

 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 Otto v. Otto, 26 A.D.3d 498, 499, 810 N.Y.S.2d 214).   That party, however, can waive the right to counsel and opt for self-representation (see People v. Arroyo, 98 N.Y.2d 101, 103, 745 N.Y.S.2d 796, 772 N.E.2d 1154;  People v. Smith, 92 N.Y.2d 516, 520, 683 N.Y.S.2d 164, 705 N.E.2d 1205;  People v. Anderson, 125 A.D.2d 580, 581, 510 N.Y.S.2d 4).   Prior to permitting a party to proceed pro se, the court must determine that the decision to do so is made knowingly, intelligently, and voluntarily (see People v. Arroyo, supra ).   To ascertain whether a party's waiver of counsel meets these requirements, the court must conduct a “searching inquiry” of that party (People v. Slaughter, 78 N.Y.2d 485, 491, 577 N.Y.S.2d 206, 583 N.E.2d 919).   Although there is no “rigid formula” as to the questions the court needs to ask for counsel waivers, there must be a showing that the party “was aware of the dangers and disadvantages of proceeding without counsel” (People v. Providence, 2 N.Y.3d 579, 582-583, 780 N.Y.S.2d 552, 813 N.E.2d 632).

Here, the Family Court failed to advise the husband of the risks of self-representation.   As such, there was no knowing, intelligent, and voluntary waiver of counsel (see People v. Arroyo, supra;  People v. Smith, supra;  Matter of Hassig v. Hassig, 34 A.D.3d 1089, 825 N.Y.S.2d 165;  Matter of Rachel P., 286 A.D.2d 868, 730 N.Y.S.2d 890).   Accordingly, we reverse the order of protection and remit the matter to the Family Court, Kings County, for a new hearing and determination.

The husband's remaining contention is without merit.