Brooklyn court removes family order of protection

Cites Denial of Right to Counsel

July 8, 2014 By Charisma L. Miller, Esq. Brooklyn Daily Eagle

Presiding Justice Randall T. Eng of the Supreme Court, Appellate Division, Second Judicial Department. File photo

Appellate Justice Randall Eng (ret.) Eagle file photo by Rob Abruzzese

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Brooklyn’s Appellate Division reversed an order of protection issued by a Queens Family Court judge on the grounds that the defendant was not afforded his right to an attorney.

Accused of attempted assault, menacing and reckless endangerment, John Visintin was ordered to stay away from familial associate and complainant Dora Cerquin for a period of two years. As with most Family Court proceedings, parties are generally advised of their right to counsel as well as their right to represent themselves pro se or without any legal counsel. Pleading indigence, Visintin advised the presiding judge that he was unable to afford an attorney and requested that the court assign an attorney to his case.

Queens Family Court Judge Dennis Lebwohl, reviewing Visintin’s weekly salary, determined that from a financial perspective, Visintin failed to meet the eligibility requirements for the assignment of counsel. Lebwohl informed Visintin that he would have to represent himself. Before inquiring further as to whether or not Visintin cared to represent and defend himself against Cerquin accusations, Lebwohl moved forward with the hearing and subsequently issued the order of protection.

“A party in a [Family Court] proceeding … has the right to be represented by counsel,” the Appellate Division, Second Department reminded in its decision on appeal. The right to counsel may, of course, be waived. However, such waiver must be given “knowingly, intelligently, and voluntarily,” the court continued.

Reviewing the court record, the Appellate Division justices expressed concern as to Visintin’s supposed waiver of counsel and determination that he represent himself pro se.

In order for a waiver to be deemed valid, the party waiving his right to counsel must be advised of the “dangers and disadvantages of proceeding without counsel,” the court noted.

After determining that Visintin was ineligible for assigned counsel, the court “proceeded with the hearing without conducting an inquiry to determine whether the appellant wished to represent himself, advising the appellant of the risks of proceeding pro se, or informing him that he could request an adjournment in order to attempt to secure counsel,” the Appellate Division found.

This failure to inquire into Visintin’s desire to represent himself and advise as to the consequences of proceeding sans counsel, “deprived of Visintin statutory right to counsel,” the paneled justices ruled.

The right to counsel and the denial of this right is considered such an affront to justice that any depravation demands a reversal, regardless of the merits of either party’s claim.

The Appellate Division reversed the order of protection against Visintin and ordered a new hearing where Visintin “appears with counsel or knowingly, intelligently and voluntarily waives his right to counsel.”

Presiding Justice Randall Eng along with Associate Justice John Leventhal, Plummer Lott and Sheri Roman sat on the Appellate Division panel.