By Mastro, J.P.; Duffy, Lasalle and Iannacci, JJ.MATTER of Douglas Heintzman, ap, v. Jennifer Heintzman, res — (Docket Nos. F-14662-13/16E, F-11734-15/15A)Douglas Heintzman, Toronto, Ontario, Canada, appellant pro se.In related proceedings pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Westchester County (Arlene E. Katz, J.), entered August 25, 2017. The order denied the father’s objections to an order of the same court (Rosa Cabanillas-Thompson, S.M.) entered June 21, 2017, which, after a hearing, dismissed the father’s petition to enforce certain provisions of the parties’ separation agreement, which was incorporated but not merged into a judgment of divorce dated December 3, 2004, and his petition for a downward modification of his child support obligation.ORDERED that the order entered August 25, 2017, is modified, on the law, by deleting the provision thereof denying the father’s objection to so much of the order entered June 21, 2017, as dismissed that branch of his petition which was for a downward modification of his child support obligation based on a reduction in his gross income by more than 15 percent, and substituting therefor a provision granting that objection and vacating that portion of the order entered June 21, 2017; as so modified, the order entered August 25, 2017, is affirmed, without costs or disbursements, and the matter is remitted to the Family Court, Westchester County, for further proceedings in accordance herewith.The parties were married in August 1989 and have three children together. In October 2004, the parties entered into a separation agreement, which was incorporated but not merged into their subsequent judgment of divorce. The separation agreement, among other things, required the parties to share the costs of certain add-on expenses for their children. In September 2015, the father filed a petition to enforce certain provisions of the separation agreement incorporated into the judgment of divorce. He alleged that the mother failed to pay her share of the children’s unreimbursed medical expenses, extracurricular activity expenses, and college education expenses. Thereafter, the father filed a petition for a downward modification of his child support obligation, alleging that his income had declined by more than 15 percent, and that the parties’ remaining unemancipated child has not resided with the mother since September 2015. After a hearing, the Support Magistrate dismissed both petitions. In her order, the Support Magistrate did not consider that branch of the father’s petition which was for a downward modification of his child support obligation based on a reduction in his income. In the order appealed from, the Family Court denied the father’s objections to the Support Magistrate’s order dismissing the petitions.Contrary to the father’s contention, the Support Magistrate did not err in dismissing the father’s enforcement petition in light of the father’s failure to provide proof that he notified the mother of her alleged violations of the parties’ separation agreement.In addition, the record supports the Support Magistrate’s determination that the father failed to establish a substantial change in circumstances warranting a downward modification of his child support obligation based on his claim that the parties’ remaining unemancipated child has not resided with the mother since September 2015 and was currently residing with the father when the child was not at college (cf. Matter of Moradi v. Noorani, 163 AD3d 570, 570; Matter of DiPaola v. DiPaola, 28 AD3d 480, 480).However, the Support Magistrate should have considered that branch of the father’s petition which was for a downward modification of his child support obligation based on a reduction in his income by more than 15 percent (see Family Ct Act §451[3][b][ii]). Therefore, we remit the matter to the Family Court, Westchester County, for a hearing and determination thereafter of that branch of the father’s petition.The father’s remaining contentions are without merit.MASTRO, J.P., DUFFY, LASALLE and IANNACCI, JJ., concur.
By Leventhal, J.P.; Miller, Duffy and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Drayvon Carmichael, ap — (Ind. No. 117/16)Arza Feldman, Uniondale, NY (Steven A. Feldman of counsel), for appellant.William V. Grady, District Attorney, Poughkeepsie, NY (Bridget Rahilly Steller of counsel), for respondent.Appeal by the defendant from a judgment of the County Court, Dutchess County (Edward T. McLoughlin, J.), rendered April 7, 2017, convicting him of identity theft in the first degree and criminal possession of a forged instrument in the second degree (two counts), upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620), we find that the evidence was legally sufficient to establish the defendant’s guilt of identity theft in the first degree beyond a reasonable doubt (see People v. Roberts, 31 NY3d 406, 417-425; People v. Yuson, 133 AD3d 1221, 1221-1222). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v. Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383, 410; People v. Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt of identity theft in the first degree was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).The defendant’s contentions regarding the County Court’s Sandoval ruling (see People v. Sandoval, 34 NY2d 371) are without merit. Of the defendant’s eight prior convictions, the court ruled it would allow the prosecutor to ask about the nature of and sentence for the defendant’s prior convictions of robbery and petit larceny, and to ask whether the defendant had been convicted of a misdemeanor. This ruling reflects an appropriate balance between the probative value of the defendant’s prior crimes on the issue of his credibility and the risk of possible prejudice (see People v. Hayes, 97 NY2d 203, 208; People v. Macaiba, 149 AD3d 651, 651; People v. Vetrano, 88 AD3d 750, 750-751). The defendant failed to sustain his burden of demonstrating that the prejudicial effect of the evidence of his prior convictions so outweighed its probative worth that exclusion of the convictions was warranted (see People v. Vetrano, 88 AD3d at 750). In particular, “[c]onvictions involving theft are highly relevant to the issue of credibility because they demonstrate the defendant’s willingness to deliberately further his self-interest at the expense of society” (People v. Hegdal, 266 AD2d 472, 473; see People v. Vetrano, 88 AD3d at 750). Moreover, the fact that the crimes charged were similar in nature to the prior convictions, without more, did not warrant preclusion (see People v. Lombardo, 151 AD3d 887, 887; People v. Hegdal, 266 AD2d at 473).The defendant’s contention that the County Court imposed illegal consecutive sentences is without merit (see People v. Brahney, 29 NY3d 10, 14-15). The defendant’s contention that the court illegally imposed a sentence for a crime for which he was neither indicted nor convicted is unpreserved for appellate review and, in any event, without merit (see People v. Paddyfote, 107 AD3d 745, 745). The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).The defendant’s remaining contention is unpreserved for appellate review and, in any event, without merit.LEVENTHAL, J.P., MILLER, DUFFY and BRATHWAITE NELSON, JJ., concur.
