S. Dean, Center for Appellate Litigation, New York (Benjamin
Wiener of counsel), for appellant.
R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen
of counsel), for respondent.
Friedman, J.P., Richter, Mazzarelli, Feinman, Gische, JJ.
Supreme Court, New York County (Thomas Farber, J.), rendered
March 25, 2014, convicting defendant, upon his plea of
guilty, of attempted criminal possession of a weapon in the
first degree as a crime of terrorism, and sentencing him, as
a second felony offender, to a term of 16 years, unanimously
defendant made a valid waiver of his right to appeal (see
People v Ramos, 7 N.Y.3d 737');">7 N.Y.3d 737 ), we find that his
challenges to the statute defining "a crime of
terrorism" (Penal Law § 490.25) are within the
category of claims that are "unwaivable as part of a
plea bargain, " and thus survive the appeal waiver
(People v Muniz, 91 N.Y.2d 570, 574 ; see
also People v Lee, 58 N.Y.2d 491, 494 ). While we
find that all of defendant's claims were preserved by way
of motion practice, we reject them on the merits.
has not met his burden of showing a "clear and
unambiguous" congressional intent to preempt state
legislation in the field of counterterrorism (People v
Kozlowski, 47 A.D.3d 111, 117-118 [1st Dept 2007],
affd 11 N.Y.3d 223');">11 N.Y.3d 223 , cert denied 556
U.S. 1282 ). The statute is not expressly preempted by
18 USC § 2338, which states that federal district courts
have exclusive jurisdiction over actions brought under 18 USC
part I, chapter 113B. Although Penal Law § 490.25(1)
uses language substantially identical to the federal
definition of "domestic terrorism" (18 USC §
2331), the Penal Law provision is a separate statute
limited to the commission of enumerated state offenses.
also fails to establish implied federal preemption of state
counterterrorism laws. Since a local community will typically
be the most directly affected by a terrorist attack there
(see United Auto., Aircraft & Agr. Implement Workers
of America v Wisconsin Employment Relations Bd., 351
U.S. 266, 274-275 ), the "federal interest"
in counterterrorism is not "so dominant" as to
"preclude" local enforcement of state laws against
attempts to commit terrorist attacks (Arizona v United
States, 567 U.S. 387, __, 132 S.Ct. 2492, 2501 ).
Moreover, Congress has not enacted "a framework of
regulation so pervasive" as to leave "no room for
the States to supplement it" (id.). This is
evident from the strong federal policy of cooperating with
state and local governments to combat terrorism (see
e.g. 42 USC § 3796h[b]).
statute is not unconstitutionally vague in proscribing the
"intent to intimidate or coerce a civilian
population " (Penal Law § 490.25 [emphasis
added]), in light of the Court of Appeals' construction
of the emphasized phrase in People v Morales (20
N.Y.3d 240, 247-249 ). Defendant's arguments that
the statute is unconstitutionally vague in using the phrase
"unit of government" among other terms are likewise
unpersuasive (see People v Stuart, 100 N.Y.2d 412,
420-22 ; see also Holder v Humanitarian Law
Project, 561 U.S. 1, 20-21 ).
reject defendant's challenges to the statute under the
Free Speech Clause of the First Amendment and article I,
§ 8 of the New York Constitution. We are unpersuaded by
defendant's argument that the statute amounts to an
impermissible content-based restriction of speech by
increasing the felony level and sentencing range imposed on
those who commit an enumerated criminal offense with the
"intent to intimidate or coerce a civilian population,
influence the policy of a unit of government by intimidation
or coercion, or affect the conduct of a unit of government by
murder, assassination or kidnapping" (Penal Law §
490.25). Such heightened punishment for defendant's
admitted intent of, among other things, influencing the
United States government's foreign policy by building and
possessing a pipe bomb does not infringe his right to free
speech (see Wisconsin v Mitchell, 508 U.S. 476, 479
). Moreover, defendant's argument that the statute
is overbroad in chilling political speech is unavailing,
since any overbreadth is not "substantial... in relation
to the statute's plainly legitimate sweep"
(Broadrick v Oklahoma, 413 U.S. 601, 615 ) of
prohibiting criminal conduct perpetrated with an intent
commonly associated with terrorism (see Wisconsin v
Mitchell, 508 U.S. at 488-489).
valid waiver of his right to appeal forecloses his excessive
sentence claim. Regardless of whether defendant validly
waived his right to ...