SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
272
CAF 14-02008
PRESENT: WHALEN, P.J., CENTRA, CARNI, DEJOSEPH, AND TROUTMAN, JJ.
IN THE MATTER OF LUCILLE A. SOLDATO,
COMMISSIONER, ONEIDA COUNTY DEPARTMENT
OF SOCIAL SERVICES, ON BEHALF OF
APRIL M. DAVIS, PETITIONER-RESPONDENT,
V MEMORANDUM AND ORDER
JASON J. CARINGI, RESPONDENT-APPELLANT.
MARY R. HUMPHREY, NEW HARTFORD, FOR RESPONDENT-APPELLANT.
TRACY L. PUGLIESE, ROME, FOR PETITIONER-RESPONDENT.
Appeal from an order of the Family Court, Oneida County (Joan E.
Shkane, J.), entered October 31, 2014 in a proceeding pursuant to
Family Court Act article 4. The order, among other things, confirmed
the Support Magistrate’s determination that respondent had willfully
failed to obey a court order.
It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the matter is
remitted to Family Court, Oneida County, for a new hearing.
Memorandum: In this proceeding pursuant to Family Court Act
article 4, respondent father appeals from an order finding him in
willful violation of a child support order and imposing a suspended
sentence of six months of incarceration. We agree with the father
that he was denied his right to counsel at the hearing before the
Support Magistrate to determine whether he was in willful violation of
the support order, and we reject petitioner’s contention that the
issue requires preservation (see Matter of Girard v Neville, ___ AD3d
___ [Mar. 18, 2016]).
At the parties’ initial appearance, the Support Magistrate
informed the father only that he had “the right to hire a lawyer [or]
talk for [himself],” asked the father to choose between those options,
and conducted no further inquiry when the father chose to proceed pro
se. The Support Magistrate thus failed to inform the father of his
right to have counsel assigned if he could not afford to retain an
attorney (see Family Ct Act § 262 [a] [vi]; Matter of Wilder v Bufe,
25 AD3d 827, 828), and also failed to engage the father in the
requisite searching inquiry concerning his decision to proceed pro se
and thereby ensure that the father was knowingly, intelligently and
voluntarily waiving his right to counsel (see Girard, ___ AD3d at ___;
-2- 272
CAF 14-02008
Matter of Storelli v Storelli, 101 AD3d 1787, 1788; see generally
Matter of Seifert v Pastwick, 118 AD3d 1503, 1504). We therefore
reverse the order and remit the matter to Family Court for a new
hearing (see Storelli, 101 AD3d at 1788). In light of our
determination, we do not reach the father’s remaining contention.
Entered: March 25, 2016 Frances E. Cafarell
Clerk of the Court