Spencer v. Spencer

• Decision Date: 12 October 2010
• Citation: 77 A.D.3d 761,908 N.Y.S.2d 597
• Parties: In the Matter of Leonie J. SPENCER, appellant, v. Ronald A. SPENCER, respondent.
• Court: New York Supreme Court — Appellate Division

908 N.Y.S.2d 597

77 A.D.3d 761

In the Matter of Leonie J. SPENCER, appellant,

v.Ronald A. SPENCER, respondent.

Supreme Court, Appellate Division, Second Department, New York.

Oct. 12, 2010.

John C. Gray, Brooklyn, N.Y. (Anna Maria Diamanti and Yanfei Shen of counsel), for appellant.

In a family offense proceeding pursuant to Family Court Act article 8, the petitioner appeals from an order of the Family Court, Kings County (Sheares, J.), dated September 28, 2009, which denied the petition and dismissed the proceeding.

ORDERED that the order is reversed, on the law, with costs, the petition is reinstated, and the matter is remitted to theFamily Court, Kings County, for further proceedings in accordance herewith.

Family Court Act § 262(a)(ii) confers the right to the assistance of counsel upon parties in proceedings brought pursuant to Family Court Act article 8 (see Matter of Knight v. Knight, 59 A.D.3d 445, 446, 873 N.Y.S.2d 324). A 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; Matter of Jetter v. Jetter, 43 A.D.3d 821, 822, 844 N.Y.S.2d 322). To determine whether a party is validly waiving the right to counsel, the court must conduct a "searching inquiry" of the party who wishes to waive that right and thus proceed pro se( People v. Slaughter, 78 N.Y.2d 485, 491, 577 N.Y.S.2d 206, 583 N.E.2d 919 [internal quotation marks omitted]; see Matter of Jetter v. Jetter, 43 A.D.3d at 822, 844 N.Y.S.2d 322).

Here, the petitioner was entitled to be represented by counsel, as she was a petitioner in a proceeding pursuant to Family Court Act article 8 ( see Family Ct. Act § 262[a][ii] ). The record, however, is inadequate to demonstrate that the petitioner validly waived her right to counsel ( see Matter of Casey N., 59 A.D.3d 625, 628-630, 873 N.Y.S.2d 343; Matter of McGregor v. Bacchus, 54 A.D.3d 678, 678-679, 863 N.Y.S.2d 260). Accordingly, the order must be reversed, the petition reinstated, and the matter remitted to the Family Court, Kings County, for a proper inquiry into whether the petitioner understands the consequences of self representation. Thereafter, as the petitioner's allegations stated a cause of action constituting a family offense pursuant to Family Court Act § 821(1), a fact-finding hearing must be held on the matter ( see Family Ct. Act § 832).

RIVERA, J.P., SKELOS, CHAMBERS and ROMAN, JJ., concur.