Opinion
1150 KA 17–01371
12-20-2019
The PEOPLE of the State of New York, Respondent, v. Richard E. VANGORDEN, Defendant–Appellant.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT. BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the resentence so appealed from is unanimously affirmed.
Memorandum: Defendant was convicted following a jury trial of, inter alia, two counts of attempted murder in the first degree ( Penal Law §§ 110.00, 125.27[1][a][i] ; [b] ). The conviction arises from incidents that occurred after two State Police officers attempted to stop defendant's truck for a traffic violation. Defendant fled from the officers at high speeds and, at some point in the ensuing chase, slowed his truck down, held a rifle out the rear window of the truck, and fired at least two shots, one of which struck the police vehicle near its driver's seat from an estimated distance of 36 feet. On a prior appeal, we, inter alia, reduced the conviction on the two counts of attempted murder in the first degree to attempted murder in the second degree ( §§ 110.00, 125.25[1] ), vacated the sentence, and remitted the matter to County Court for resentencing ( People v. Vangorden, 147 A.D.3d 1436, 1436–1437, 46 N.Y.S.3d 730 [4th Dept. 2017], lv denied 29 N.Y.3d 1037, 62 N.Y.S.3d 306, 84 N.E.3d 978 [2017] ). Defendant now appeals from the resentence.
Defendant contends that the court erred in imposing at resentencing consecutive sentences for the two counts of attempted murder in the second degree. We reject that contention inasmuch as the record establishes that, although the shots were fired closely together in time, "[t]he attempts to shoot each officer were separate and distinct" ( People v. Rudolph, 16 A.D.3d 1151, 1152, 791 N.Y.S.2d 253 [4th Dept. 2005], lv. denied 5 N.Y.3d 809, 803 N.Y.S.2d 38, 836 N.E.2d 1161 [2005] ; see Penal Law § 70.25[2] ; People v. McCullough, 283 A.D.2d 988, 988–989, 724 N.Y.S.2d 666 [4th Dept. 2001], lv denied 96 N.Y.2d 941, 733 N.Y.S.2d 381, 759 N.E.2d 380 [2001] ; see generally People v. Brown, 80 N.Y.2d 361, 365, 590 N.Y.S.2d 422, 604 N.E.2d 1353 [1992] ). In view of defendant's extensive prior criminal history and the serious nature of the offenses, we further conclude that the resentence is not unduly harsh or severe.