Opinion
No. 2004-00379.
September 16, 2008.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rosenzweig, J.), rendered December 16, 2003, convicting him of attempted disseminating indecent material to minors in the first degree, attempted disseminating indecent material to minors in the second degree, and attempted endangering the welfare of a child, upon a jury verdict, and imposing sentence.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Anastasia Spanakos of counsel), for respondent.
Before: Rivera, J.P., Lifson, Santucci and Miller, JJ.
Ordered that the judgment is modified, on the law, by vacating the conviction of attempted disseminating indecent material to minors in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The People assert that the injunction issued by the court in American Libs. Assn. v Pataki ( 969 F Supp 160 [SD NY 1997]) compels them to request vacatur of the defendant's conviction for attempted disseminating indecent material to minors in the second degree under Penal Law § 235.21 (3). Accordingly, we vacate that conviction and dismiss that count of the indictment on the People's request.
The defendant's remaining contentions are unpreserved for appellate review, and we decline to review them in the exercise of our interest of justice jurisdiction ( see CPL 470.05; People v Simon, 6 AD3d 733; People v Drysdale, 295 AD2d 533).