| People v Edrees |
| 2014 NY Slip Op 08660 [123 AD3d 842] |
| December 10, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Ahmed Edrees, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Bryan D. Kreykes of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (LeonardJoblove, Victor Barall, and Gabrielle Lang of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (IDVpart) (Morgenstern, J.), rendered February 1, 2011, convicting him of attempted assaultin the third degree, menacing in the third degree, harassment in the second degree,attempted criminal possession of a weapon in the fourth degree, attempted criminalcontempt in the second degree, attempted aggravated harassment in the second degree(three counts), and harassment in the second degree (two counts), after a nonjury trial,and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the convictions ofattempted aggravated harassment in the second degree pursuant to Penal Law§§ 110.00, 240.30 (1) (a) and (b) and vacating the sentences imposedthereon; as so modified, the judgment is affirmed.
"Where a substantive criminal statute has been held unconstitutional, there is noalternative but to give the decision retroactive effect for the declaration ofunconstitutionality is a statement that the defendant has committed no crime" (Peoplev Tannenbaum, 23 NY2d 753, 753 [1968]). The Court of Appeals has held thatPenal Law § 240.30 (1), as written at the time of the defendant's conviction,was unconstitutionally vague and overbroad under both the state and federalconstitutions (see People vGolb, 23 NY3d 455, 466-468 [2014]). Accordingly, the defendant's convictionsof attempted aggravated harassment in the second degree pursuant to Penal Law§§ 110.00 and 240.30 (1) (a) and (b) must be vacated. The defendant'scontention regarding Penal Law § 240.30 (2), however, is unpreserved forappellate review (see CPL 470.05 [2]; People v Papas, 110 AD3d 1102 [2013]) and, in any event,without merit (see People v Shack, 86 NY2d 529 [1995]).
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348 [2007]), we accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, andobserve demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt of attempted assault in the third degree, menacing in thethird degree, harassment in the second degree, and attempted criminal possession of aweapon in the fourth degree was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]). Dillon, J.P., Dickerson, Leventhal and Hall, JJ., concur.