Opinion
2012-1385 RI CR
09-29-2015
The People of the State of New York, Respondent, v. Vincent Gargano, Appellant.
PRESENT: :
Appeal from a judgment of the Criminal Court of the City of New York, Richmond County (Mario F. Mattei, J.), rendered May 4, 2012. The judgment convicted defendant, upon his plea of guilty, of attempted aggravated harassment in the second degree.
ORDERED that the judgment of conviction is reversed, on the law and as a matter of discretion in the interest of justice, the accusatory instrument is dismissed, and the surcharge, if paid, is remitted.
Pursuant to a negotiated plea agreement, defendant pleaded guilty to attempted aggravated harassment in the second degree (Penal Law §§ 110.00, 240.30 [1] [a]).
Defendant's constitutional challenge to the statute, raised for the first time on appeal, is unpreserved for appellate review (see People v Jones, 114 AD3d 1239, 1241 [2014]). Nevertheless, we consider this challenge as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]), inasmuch as the Court of Appeals has held that Penal Law § 240.30 (1) is unconstitutionally vague and overbroad under both the state and federal constitutions (see People v Golb, 23 NY3d 455, 467-468 [2012]). "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 NY2d 753, 753 [1968]; see also People v Edrees, 123 AD3d 842, 843 [2014]).
Accordingly, the judgment of conviction is reversed, the accusatory instrument is dismissed, and the surcharge, if paid is remitted.
Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: September 29, 2015