IN RE: Patricia A. KNIGHT (2009)

In a family offense proceeding pursuant to Family Court Act article 8, the husband appeals from 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 order of protection, dated September 18, 2007, and committed him to the custody of the Rockland County Jail for three consecutive terms of six months incarceration.

ORDERED that the order dated December 5, 2007, is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Rockland County, for a new hearing 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 A.D.3d 678, 863 N.Y.S.2d 260;  Matter of Jetter v. Jetter, 43 A.D.3d 821, 822, 844 N.Y.S.2d 322).   That party, however, may waive the right to counsel, provided that the waiver is knowing, voluntary, and intelligent (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;  Matter of McGregor v. Bacchus, 54 A.D.3d 678, 678-679, 863 N.Y.S.2d 260;  Matter of Jetter v. Jetter, 43 A.D.3d 821, 822, 844 N.Y.S.2d 322).   To ensure a valid waiver, 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;  see People v. Arroyo, 98 N.Y.2d 101, 103, 745 N.Y.S.2d 796, 772 N.E.2d 1154).   While there is no rigid formula to be followed in such an inquiry, and the approach is a flexible one (see People v. Providence, 2 N.Y.3d 579, 583, 780 N.Y.S.2d 552, 813 N.E.2d 632), the record must demonstrate that the party “ ‘was aware of the dangers and disadvantages of proceeding without counsel’ ” (People v. Providence, 2 N.Y.3d 579, 582, 780 N.Y.S.2d 552, 813 N.E.2d 632, quoting People v. Slaughter, 78 N.Y.2d 485, 492, 577 N.Y.S.2d 206, 583 N.E.2d 919;  see Matter of Guzzo v. Guzzo, 50 A.D.3d 687, 688, 855 N.Y.S.2d 197).

 Here, the Family Court failed to conduct a “searching inquiry” of the husband and failed to advise him of the risks of self-representation.   Thus, there was no knowing, voluntary, and intelligent waiver of the right to counsel (see Matter of Guzzo v. Guzzo, 50 A.D.3d 687, 688, 855 N.Y.S.2d 197;  Matter of Jetter v. Jetter, 43 A.D.3d 821, 822, 844 N.Y.S.2d 322).   Accordingly, the order must be reversed, and the matter remitted to the Family 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.