People v. Pimentel

Judgment, 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 affirmed.

Although defendant made a valid waiver of his right to appeal (see People v Ramos, 7 NY3d 737 [2006]), we find that his challenges to the statute defining “a crime of terrorism” (Penal Law § 490.25 [1]) 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 NY2d 570 , 574 [1998]; see also People v Lee, 58 NY2d 491 , 494 [1983]). While we find that all of defendant’s claims were preserved by way of motion practice, we reject them on the merits.

Defendant 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 Automobile Workers v Wisconsin Employment Relations Bd., 351 US 266 , 274-275 [1956]), 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 US 387 , 399 [2012]). Moreover, Congress has not enacted “a framework of regulation so pervasive” as to leave “no room for the States to supplement it” (id. [internal quotation marks omitted]). 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] [4]).

The statute is not unconstitutionally vague in proscribing the “intent to intimidate or coerce a civilian population” (Penal Law § 490.25 [1] [emphasis added]), in light of the Court of Appeals’ construction of the emphasized phrase in People v Morales ( 20 NY3d 240 , 247-249 [2012]). 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 NY2d 412 , 420-422 [2003]; see also Holder v Humanitarian Law Project, 561 US 1 , 20-21 [2010]).

We also 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

Defendant’s valid waiver of his right to appeal forecloses his excessive sentence claim. Regardless of whether defendant validly waived his right to appeal, we perceive no basis for reducing the sentence.

Concur — Friedman, J.P., Richter, Maz-zarelli, Feinman and Gische, JJ.