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THE RECORD WAS NOT SUFFICIENT TO CONCLUDE APPELLANT IN THIS FAMILY OFFENSE PROCEEDING VALIDLY WAIVED HIS RIGHT TO COUNSEL; NEW HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Family Court in this family offense proceeding, determined the record was insufficient to conclude the appellant had validly waived his right to counsel:

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] …). That party, however, may waive the right to counsel, provided that the waiver is knowing, voluntary, and intelligent … . To ensure a valid waiver, the court must conduct a “searching inquiry” of that party … . While there is no rigid formula to be followed in such an inquiry, and the approach is a flexible one … , the record must demonstrate that the party “‘was aware of the dangers and disadvantages of proceeding without counsel'” … .

Here, the record is inadequate to demonstrate that the appellant validly waived his right to counsel … . The deprivation of a party’s right to counsel guaranteed by Family Court Act § 262 requires reversal without regard to the merits of the unrepresented party’s position … . Matter of Mendez-Emmanuel v Emmanuel, 2024 NY Slip Op 01180, Second Dept 3-6-24

Practice Point: In a family offense proceeding the respondent has a right to counsel. If the record doesn’t demonstrate a valid waiver of the right to counsel, a new hearing will be ordered.

 

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