Opinion
04-29-2015
The PEOPLE, etc., respondent, v. Marcus CESAIRE, appellant.
Douglas G. Rankin, P.C., Brooklyn, N.Y., for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Rhea A. Grob of counsel), for respondent.
Douglas G. Rankin, P.C., Brooklyn, N.Y., for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Rhea A. Grob of counsel), for respondent.
Opinion Appeal by the defendant from a judgment of the Supreme Court, Kings County (Henry, J.), rendered December 14, 2011, convicting him of attempted criminal contempt in the second degree (two counts), harassment in the second degree, and attempted aggravated harassment in the second degree, after a nonjury trial, and imposing sentence.
ORDERED that the judgment is modified, on the law, by vacating the conviction of attempted aggravated harassment in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; 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 ; see People v. Edrees, 123 A.D.3d 842, 843, 999 N.Y.S.2d 86 ). In People v. Golb, 23 N.Y.3d 455, 991 N.Y.S.2d 792, 15 N.E.3d 805, the Court of Appeals 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 at 466–468, 991 N.Y.S.2d 792, 15 N.E.3d 805 ; People v. Edrees, 123 A.D.3d at 843, 999 N.Y.S.2d 86 ). Accordingly, the defendant's conviction of attempted aggravated harassment in the second degree must be vacated (see People v. Golb, 23 N.Y.3d at 468, 991 N.Y.S.2d 792, 15 N.E.3d 805 ; People v. Edrees, 123 A.D.3d at 843, 999 N.Y.S.2d 86 ). In light of the foregoing determination, the defendant's remaining contentions with respect to that conviction have been rendered academic.
As to the remaining convictions, the defendant's contentions with respect to the amendment of the accusatory instrument to reduce charges of criminal contempt in the second degree to attempted criminal contempt in the second degree are unpreserved for appellate review (see People v. Mejia, 122 A.D.3d 495, 495, 996 N.Y.S.2d 40 ) and, in any event, without merit (see id.; People v. Edwards, 58 A.D.3d 412, 412, 871 N.Y.S.2d 92 ; see also People v. Urbaez, 10 N.Y.3d 773, 775, 856 N.Y.S.2d 520, 886 N.E.2d 142 ). The defendant's contention that he was deprived of the effective assistance of counsel also is without merit (see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ; see also People v. Caban, 5 N.Y.3d 143, 156, 800 N.Y.S.2d 70, 833 N.E.2d 213 ).
MASTRO, J.P., LEVENTHAL, COHEN and MALTESE, JJ., concur.