In the Matter of Kathleen K.

953 N.E.2d 773, 17 N.Y.3d 380, 929 N.Y.S.2d 535, 2011 NY Slip Op 4768
CourtNew York Court of Appeals
DecidedJune 9, 2011
Docket75
StatusPublished
Cited by82 cases

This text of 953 N.E.2d 773 (In the Matter of Kathleen K.) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Matter of Kathleen K., 953 N.E.2d 773, 17 N.Y.3d 380, 929 N.Y.S.2d 535, 2011 NY Slip Op 4768 (N.Y. 2011).

Opinions

OPINION OF THE COURT

Jones, J.

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 [384]*384relieved 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.:

“the court: And you are not in a position to object.
You have a lawyer. You cannot object.
“[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.
“the court: You can’t proceed on your own. You don’t know the law.
“[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 AD3d 1146, 1147 [2d Dept 2010]). This Court granted leave to appeal (15 NY3d 702 [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 [385]*385appointed counsel (see Faretta v California, 422 US 806 [1975]; People v McIntyre, 36 NY2d 10 [1974]; US Const Amend VI; NY 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 [the court must ensure that “(defendant) knows what he is doing and his choice is made with eyes open”]). 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 [“(T)echnical legal knowledge, as such, was not relevant to an assessment of his knowing exercise of the right to defend himself’]).

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 NY2d at 14 [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).

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 NY2d 485 [1991]; People v Vivenzio, 62 NY2d 775, 776 [1984]). A waiver is voluntarily made when the trial court advises the defendant and can be [386]*386certain that the “dangers and disadvantages of giving up the fundamental right to counsel have been impressed upon the defendant” (Slaughter at 491 [internal quotation marks omitted]). A “searching inquiry” does not have to be made in a formulaic manner (see People v Smith, 92 NY2d 516, 520 [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 NY2d 101, 104 [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.

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Bluebook (online)
953 N.E.2d 773, 17 N.Y.3d 380, 929 N.Y.S.2d 535, 2011 NY Slip Op 4768, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-matter-of-kathleen-k-ny-2011.