Opinion
2011-03394 (Docket No. 20596V/08)
12-10-2014
The PEOPLE, etc., respondent, v. Ahmed EDREES, appellant.
Lynn W.L. Fahey, New York, N.Y. (Bryan D. Kreykes of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall, and Gabrielle Lang of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Bryan D. Kreykes of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall, and Gabrielle Lang of counsel), for respondent.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and L. PRISCILLA HALL, JJ.
Opinion Appeal by the defendant from a judgment of the Supreme Court, Kings County (IDV Part) (Morgenstern, J.), rendered February 1, 2011, convicting him of attempted assault in the third degree, menacing in the third degree, harassment in the second degree, attempted criminal possession of a weapon in the fourth degree, attempted criminal contempt 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 of attempted aggravated harassment in the second degree pursuant to Penal Law §§ 240.30(1)(a) and (1)(b) and vacating the sentences imposed thereon; as so modified, the judgment is affirmed.
“Where a substantive criminal statute has been held unconstitutional, there is no alternative but to give the decision retroactive effect for the declaration of unconstitutionality is a statement that the defendant has committed no crime” (People v. Tannenbaum, 23 N.Y.2d 753, 753, 296 N.Y.S.2d 798, 244 N.E.2d 269 ). The Court of Appeals has held that Penal Law § 240.30(1), as written at the time of the defendant's conviction, was unconstitutionally vague and overbroad under both the state and federal constitutions (see People v. Golb, 23 N.Y.3d 455, 466–468, 991 N.Y.S.2d 792, 15 N.E.3d 805 ). Accordingly, the defendant's convictions of attempted aggravated harassment in the second degree pursuant to Penal Law §§ 240.30(1)(a) and (1)(b) must be vacated. The defendant's contention regarding Penal Law § 240.30(2), however, is unpreserved for appellate review (see CPL 470.05[2] ; People v. Papas, 110 A.D.3d 1102, 974 N.Y.S.2d 262 ) and, in any event, without merit (see People v. Shack, 86 N.Y.2d 529, 634 N.Y.S.2d 660, 658 N.E.2d 706 ).
In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt of attempted assault in the third degree, menacing in the third degree, harassment in the second degree, and attempted criminal possession of a weapon in the fourth degree was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).