In the Matter of Kathleen K.
| Decision Date | 09 June 2011 |
| Citation | 929 N.Y.S.2d 535,17 N.Y.3d 380,2011 N.Y. Slip Op. 04768,953 N.E.2d 773 |
| Parties | In the Matter of KATHLEEN K., a Child Alleged to be Permanently Neglected.Suffolk County Department of Social Services, Respondent;Steven K., Appellant.(And Two Other Proceedings.) |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Feldman and Feldman, Uniondale (Steven A. Feldman and Arza Feldman of counsel), for appellant.Christine Malafi, County Attorney, Riverhead (James G. Bernet and Ann K. Kandel of counsel), for respondent.Judd & Moss, P.C., Ronkonkoma (Francine H. Moss of counsel), Attorney for the Children.
In June 2007, child neglect proceedings were commenced, pursuant to Family Court Act article 10, by Suffolk County Child Protective Services against appellant Steven K., the father of Kathleen K. and Rachel K. At a hearing on June 5, 2007, testimony was elicited indicating that Steven K. had subjected his children and spouse to mental and physical abuse. Family Court issued a temporary order of protection directing Steven K. to cease all contact with his children except for supervised visitation. At a subsequent trial on September 7, 2007, Family Court found by a preponderance of the evidence that Steven K. had neglected his children. Consequently, in the best interests of the children, the order of protection was made permanent; the children were placed in the foster care of the Suffolk County Department of Social Services (DSS); and Steven K. was ordered to, among other things, undergo a mental health evaluation, attend a parenting skills program, and obtain safe and suitable housing.1
At a hearing on January 22, 2009, after learning that Steven K. had failed to comply with the court-ordered conditions, Family Court concluded that the permanency goal for the children should be modified to “free [them] for adoption” and directed DSS to file a petition seeking the termination of Steven K.'s parental rights. The mother of the children voluntarily surrendered her parental rights on December 18, 2008, and DSS filed parental right termination petitions on January 22, 2009 against Steven K. on the ground of permanent neglect ( see Social Services Law § 384–b [7] ).
On March 31, 2009, prior to the commencement of trial, counsel for Steven K. made an application to the court “to be relieved from this case” on the basis that Steven K. had “refused to work with [counsel] to discuss, to prepare for this trial.” The attorney further argued that it was impossible to work with, or provide effective assistance to Steven K. because of his recalcitrant behavior. Family Court inquired about the application directly with Steven K., but in an exchange with the court, his response did not address the application; instead he spoke about personal medical issues, financial issues, and the possibility of an adjournment of the trial. Family Court denied the application. After DSS had called its first witness, the following colloquy occurred between Family Court and Steven K.:
“[steven k.]: I asked for the lady to be terminated.
“the court: You're ready to proceed on your own?
“[steven k.]: If I have to.
“[steven k.]: We went through this already.
“the court: Sorry.
“[steven k.]: So you're refusing me an assignment of counsel.
“the court: I gave you counsel.
“[steven k.]: I turned it down.”
Additionally, on April 2, 2009, counsel for Steven K. stated that she was renewing her application to be relieved and his application to represent himself. Family Court again denied the motion.
Following the completion of trial, Family Court terminated Steven K.'s parental rights due to his persistent failure to comply with court-mandated conditions and the lack of evidence evincing efforts to adequately provide for his family.2 The Appellate Division unanimously upheld the disposition, holding that Steven K.'s applications to represent himself were not unequivocal and timely ( 71 A.D.3d 1146, 1147, 899 N.Y.S.2d 271 [2d Dept.2010] ). This Court granted leave to appeal (15 N.Y.3d 702, 905 N.Y.S.2d 804, 931 N.E.2d 1060 [2010] ), and we now affirm on the same basis.
It is well settled that a criminal defendant's constitutional right to counsel concomitantly includes the right to refuse appointed counsel ( see Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 [1975]; People v. McIntyre, 36 N.Y.2d 10, 364 N.Y.S.2d 837, 324 N.E.2d 322 [1974]; U.S. Const. Amend. VI; N.Y. Const., art. I, § 6). In the seminal case Faretta, the United States Supreme Court explained that the right to defend oneself in a criminal proceeding is a personal right, i.e., it is defendant's right, not counsel's, to be informed of the charges and to confront the witnesses against him. Consequently, a criminal defendant can decline representation, but self-representation is not an unfettered right. The trial court must ensure that the defendant knowingly, intelligently, and voluntarily waives counsel before permitting the individual to forgo counsel and proceed pro se ( id. at 835, 95 S.Ct. 2525 [] ). That a defendant lacks legal skill or knowledge is not a preclusive bar to self-representation so long as the defendant voluntarily waives the right to counsel ( id. at 836, 95 S.Ct. 2525 [] ).
New York similarly guarantees a constitutional right of self-representation to criminal defendants. This Court has recognized that “even in cases where the accused is harming himself by insisting on conducting his own defense, respect for individual autonomy requires that he be allowed to go to jail under his own banner if he so desires and if he makes the choice with eyes open” ( McIntyre, 36 N.Y.2d at 14, 364 N.Y.S.2d 837, 324 N.E.2d 322 [internal quotation marks omitted] ).
Accordingly, this Court has enumerated certain essential requirements that must be satisfied for a criminal defendant to effectively represent himself:
“A defendant in a criminal case may invoke the right to defend pro se provided: (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues” ( id. at 17, 364 N.Y.S.2d 837, 324 N.E.2d 322).
If a timely and unequivocal request has been asserted, then the trial court is obligated to conduct a “searching inquiry” to ensure that the defendant's waiver is knowing, intelligent, and voluntary ( see People v. Slaughter, 78 N.Y.2d 485, 577 N.Y.S.2d 206, 583 N.E.2d 919 [1991]; People v. Vivenzio, 62 N.Y.2d 775, 776, 477 N.Y.S.2d 318, 465 N.E.2d 1254 [1984] ). A waiver is voluntarily made when the trial court advises the defendant and can be certain that the “dangers and disadvantages of giving up the fundamental right to counsel have been impressed upon the defendant” ( Slaughter at 491, 577 N.Y.S.2d 206, 583 N.E.2d 919 [internal quotation marks omitted] ). A “searching inquiry” does not have to be made in a formulaic manner ( see People v. Smith, 92 N.Y.2d 516, 520, 683 N.Y.S.2d 164, 705 N.E.2d 1205 [1998] ), although it is better practice to ask the defendant about his “age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver” ( People v. Arroyo, 98 N.Y.2d 101, 104, 745 N.Y.S.2d 796, 772 N.E.2d 1154 [2002] ).
Assuming, without deciding, that a parent in a termination of parental rights proceeding has a Faretta-type right of self-representation, in our view, the record does not facially demonstrate unequivocal and timely applications for self-representation that would have triggered a “searching inquiry.” Steven K. argues that there are two junctures within the record where he invoked the right to represent himself. The first occurred on March 31, 2009, prior to the commencement of trial; and subsequently on April 2, 2009, the second day of trial. With respect to the first application, although its timeliness is not at issue because it was made prior to trial, on this record, the request was not unequivocal. Contrary to Steven K.'s contention, rather than clearly articulating that he sought to represent himself, his counsel stated that she wanted “to be relieved from this case” without advising the court that Steven K. wished to proceed pro se ( see People v. Rainey, 240 A.D.2d 682, 683, 659 N.Y.S.2d 494 [2d Dept.1997]; People v. Jones, 187 A.D.2d 750, 589 N.Y.S.2d 937 [3d Dept.1992] ). When Family Court sought further explanation from Steven K. himself, he proffered nonresponsive answers that did not provide any clarity as to the basis of the application. The record further belies Steven K.'s position that he unequivocally sought to represent himself when he later informed the court “[t]hat's why I want a different counsel.”
While Steven K. correctly argues that a request for self-representation does not require the recitation of “[a] talismanic formula” to alert a trial court ( Dorman v. Wainwright, 798 F.2d 1358, 1366 [11th Cir.1986] ), the application must reflect a purposeful decision to relinquish the benefit of counsel and proceed singularly. In People v. Gillian, 8 N.Y.3d 85, 828 N.Y.S.2d 277, 861 N.E.2d 92 (2006), we held that a criminal defendant's request for self-representation which was made in the alternative to an underlying request for substitution of counsel was not an unequivocal request, especially where it was used as leverage to compel dismissal of assigned counsel. There, the defendant initially sought to substitute his assigned counsel on the grounds of conflict...
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