By Friedman, J.P., Renwick, Tom, Gesmer, Oing, JJ. 9926. In re Carmit D., pet-ap, v. Gil D., res-res — Carmit P. Thacher, appellant pro se. Berke & Berke, New York (Jeffrey R. Berke of counsel), for res — __—Order, Family Court, New York County (Clark V. Richardson, J.), entered on or about November 21, 2017, which denied petitioner mother’s objection to a Support Magistrate’s order, entered on or about August 1, 2017, denying petitioner’s motion to vacate orders, entered on her default, which granted respondent father’s petitions to modify, enforce and suspend child support obligations, affirmed, without costs. During the proceeding on March 25, 2015 before the Support Magistrate, the mother told the court, “I’m not going to be here. Whatever it’s going to be the decision, it’s going to be without me. I’m not coming for the April 8th or ever.” The mother subsequently fled the jurisdiction and took the parties’ child to Italy without disclosing their whereabouts, thus depriving the father of his visitation rights, to which the mother had agreed in a stipulation that was incorporated in the divorce judgment. The mother then defaulted in three proceedings before the Support Magistrate, which resulted in a court order suspending the father’s child support obligations for the subject children as of July 7, 2015 as a consequence of her defaults. The mother’s argument that the court lacked subject matter jurisdiction over the father’s petitions to modify and enforce his child support obligations pursuant to a judgment of divorce entered in 2009 in Nassau County is without merit (see Family Court Act §466[c]). The judgment of divorce provides that Supreme Court, Nassau County, retains jurisdiction of the matter concurrently with Family Court, Nassau County. When post-judgment proceedings brought by the father in Nassau County were transferred to New York County, the mother appeared therein and expressly consented to all proceedings being heard in New York County, where she lived. Nevertheless, the mother then withdrew her own petitions pending in New York County and told the court that she would not appear at any further court proceedings, and she in fact defaulted in the ensuing proceedings. The Support Magistrate then granted the father’s petitions for modification and enforcement based on the father’s evidence of changed circumstances and the overpayments he had made with respect to the children’s health and education. The mother’s argument that the court lacked subject matter jurisdiction over the father’s petition to terminate his child support obligations and personal jurisdiction over her with respect to that petition is also without merit. After learning that the mother had left the country with the youngest child, the father commenced a separate proceeding to compel visitation and a proceeding to terminate or suspend his child support obligations based on the mother’s interference with his visitation. Upon the father’s showing that petitioner had moved abroad without providing an address, the court properly granted the father leave to serve the mother with the termination petition by alternate means, and the mother was served both by email and by mail at her last known address (see Family Court Act §427[b], [c]). Upon the father’s proof of service, and after confirming that a Family Court judge had issued a stayed warrant for the mother’s arrest in the visitation proceeding, the Support Magistrate properly granted the father’s petition to the extent of suspending the child support order. The mother contends that support magistrates may not decide visitation issues or suspend child support on the ground of interference with visitation (see Family Court Act §439). However, under these circumstances, the Support Magistrate did not impermissibly decide any issues related to visitation. The mother’s motion to vacate the default orders made on or about May 19, 2017 was untimely, as it was made more than one year after the orders were issued, and failed to provide both a reasonable excuse for her defaults and a meritorious defense, or indeed either (CPLR 5015[a][1]; see Ashley v. Ashley, 139 AD3d 650 [2d Dept 2016]; see also Matter of Bendeck v. Zablah, 105 AD3d 457 [1st Dept 2013]). All concur except Gesmer, J. who dissents in a memorandum as follows:GESMER, J. (dissenting) I agree with the majority that New York County Family Court had jurisdiction over the father’s modification and enforcement petitions. I also agree that the mother’s motion to vacate her default on those petitions on the basis of excusable default was untimely, as she filed it more than a year after the orders were issued (CPLR 5015[a][1]). However, the mother’s request to vacate the order suspending child support was made on the basis of lack of jurisdiction, and was thus not subject to the one year time limitation set forth in CPLR 5015(a)(4). Because the record before us does not contain a finding by a Family Court judge that the mother deliberately frustrated or actively interfered with the father’s visitation rights (Rodman v. Friedman, 112 AD3d 537 [1st Dept 2013]; Matter of Thompson v. Thompson, 78 AD3d 845, 846 [2d Dept 2010]), the order suspending child support should have been vacated (Family Ct Act §439[a]). Accordingly, I would vote to vacate the ordersuspending child support and remand the father’s June 16, 2015 petition to suspend and terminate his child support obligations for hearing by a Family Court judge. This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.
By Gische, J.P., Tom, Kapnick, Kern, Moulton, JJ. 10296. PEOPLE, res, v. Robert Knowles, def-ap — __ Justine M. Luongo, The Legal Aid Society, New York (Tomoeh Murakami Tse of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (R. Jeannie Campbell-Urban of counsel), for res — __—Judgment, Supreme Court, New York County (Arlene D. Goldberg, J.), rendered October 28, 2015, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree and unlawful possession of marijuana, and sentencing him, as a second felony offender, to a term of 2 to 4 years and a $50 fine, respectively, unanimously modified, on the facts, to the extent of vacating the conviction for criminal possession of a weapon in the third degree, and dismissing that count, and otherwise affirmed. We find that defendant’s conviction for criminal possession of a weapon in the third degree was against the weight of the evidence (see generally People v. Danielson, 9 NY3d 342, 348-349 [2007]; People v. Correa, __AD3d__, 2019 NY Slip Op 07017 [1st Dept 2019]). The focus at trial was whether a box cutter recovered from defendant in a search after his arrest for an open container violation (defendant was drinking a can of beer placed inside a brown paper bag) was a dangerous instrument, which defendant possessed with the intent to use unlawfully against another (see Penal Law §265.01[2]).1 The sole witness at trial was the arresting officer, Officer Nicholas McKeever of the New York City Police Department’s Transit Bureau. He testified that he was on duty in plain clothes on September 6, 2014 at about 1:00 a.m. on the east side of Sixth Avenue near the corner of Waverly Place when he saw defendant walking around with a can in a brown paper bag. The top of the can was labeled “24 ounce” and he believed, based on his experience enforcing the open container law, that the can was a Coors Light beer. The officer followed defendant across the street and saw defendant open the can and drink from it. He approached defendant and identified himself as a police officer. Defendant smiled and put the beer down on a ledge behind him. The officer examined the can and saw that it was, in fact, a Coors Light beer. He asked defendant for identification and when defendant could not provide it, he arrested defendant for an open container violation (NYC Administrative Code §10-125[b]). Officer McKeever searched defendant at the scene and found “one little bag” of marijuana in his shorts pocket. While he was conducting the search, the officer asked defendant if he had anything sharp on him. Asked by the prosecutor if defendant had provided him with anything, the officer replied no. Defendant was then transported to a nearby transit bureau office where he was again searched by Officer McKeever. At that time, the officer found a black bag containing five small bags of marijuana hanging out of defendant’s underwear. While feeling around defendant’s waist, the officer felt a metal object in defendant’s shorts. Upon further search, the officer saw the butt end of a box cutter sticking out of the fly of defendant’s underwear. The razor of the box cutter was in its sheath and not exposed. He later tested the box cutter to see if it was sharp, and he was able to cut paper with it. Officer McKeever never saw defendant holding the box cutter and did not see him argue with or threaten anyone. “[A] weight of the evidence review requires a court first to determine whether an acquittal would not have been unreasonable. If so, the court must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions. Based on the weight of the credible evidence, the court then decides whether the jury was justified in finding the defendant guilty beyond a reasonable doubt” (People v. Danielson, 9 NY3d at 348).”Necessarily, in conducting its weight of the evidence review, a court must consider the elements of the crime, for even if the prosecution’s witnesses were credible their testimony must prove the elements of the crime beyond a reasonable doubt” (id. at 349). We conclude that the People did not prove beyond a reasonable doubt that defendant possessed a dangerous instrument with the intent2 to use it unlawfully against another (see Penal Law §§265.01[2]; 265.02[1]). As the jury was charged, a “dangerous instrument” is “any instrument, article or substance,… which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or other serious physical injury” (Penal Law §10.00[13]). An object “becomes a dangerous instrument when it is used in a manner which renders it readily capable of causing serious physical injury”(People v. Carter, 53 NY2d 113, 116 [1981]). Here, there was no proof that defendant used the box cutter, attempted to use it, or threatened to use it as required under the plain terms of the statute in order for it to be a dangerous instrument (cf. People v. Soares, 80 AD3d 631-632 [2d Dept 2011], lv denied 16 NY3d 863 [2011] [box cutter properly found to be a dangerous instrument where evidence at trial established that "defendant held a box cutter to the victim's neck with one hand while, with his other hand and arm, he beat the victim, rifled through his pockets, and stole his property"]). Accordingly, the People failed to establish defendant’s guilt on the weapon charge beyond a reasonable doubt. This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.
