In re Samantha L. , 736 N.Y.S.2d 560 ( 2002 )

—Appeal from an order of Family Court, Erie County (Mix, J.), entered June 20, 2000, which, inter alia, adjudged that Samantha L. is an abused child.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: In this proceeding brought pursuant to Family Court Act article 10, Family Court erred in directing respondent to proceed pro se on the first day of the fact-finding hearing, thus violating his right to counsel (see, Family Ct Act §§ 261, 262 [a]; Matter of Wilson v Bennett, 282 AD2d 933, 934; Matter of Meko M., 272 AD2d 953, 953-954; Matter of Mahoney v Doring, 256 AD2d 1112, 1112-1113; Matter of Patricia L. v Steven L., 119 AD2d 221, 224-226). Nevertheless, upon perceiving the error, the court assigned counsel to represent respondent and gave respondent the option of either recommencing the hearing or waiving the right to do so and instead having newly-assigned counsel review transcripts of the testimony already given. Counsel waived respondent’s right to a de novo hearing based expressly on respondent’s “indicated” wishes. Respondent thereby ratified the brief deprivation of counsel and waived his right to seek a new hearing. In response, the court, on consent of all parties, granted a lengthy adjournment to allow for completion of transcripts and review by counsel.

Even in the absence of respondent’s valid waiver, we would conclude, under the unique circumstances of this case, that respondent was not prejudiced as a result of being directed to proceed pro se on the first day of the fact-finding hearing (see, Matter of McNeill v Ressel, 258 AD2d 64, 66-67, appeal dismissed 94 NY2d 838; cf., Matter of Radjpaul v Patton, 145 AD2d 494, 496-497; Matter of Patricia L. v Steven L., supra at 225). Nor was respondent deprived of effective assistance of counsel. Assigned counsel provided meaningful representation at the fact-finding hearing (see, Matter of Nicholas GG., 285 AD2d 678, 679; Matter of Baker v Baker, 283 AD2d 730, 731, lv denied 96 NY2d 720; Matter of Kahira C., 269 AD2d 840, 841, lv denied 95 NY2d 751; Matter of Sueann B., 258 AD2d 930, 931). Present — Pine, J.P., Wisner, Hurlbutt, Kehoe and Burns, JJ.