        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

219
KA 10-01297
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, GREEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DEREK BACKUS, DEFENDANT-APPELLANT.


ROBERT A. DURR, SYRACUSE, D.J. & J.A. CIRANDO, ESQS. (JOHN A. CIRANDO
OF COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a resentence of the Onondaga County Court (Anthony F.
Aloi, J.), rendered June 14, 2010. Defendant was resentenced upon a
conviction of vehicular assault in the second degree (two counts) and
driving while intoxicated.

     It is hereby ORDERED that the resentence so appealed from is
modified as a matter of discretion in the interest of justice by
reducing the sentences imposed for vehicular assault in the second
degree under counts one and two of the indictment to definite
sentences of imprisonment of one year and as modified the resentence
is affirmed and the matter is remitted to Onondaga County Court for
proceedings pursuant to CPL 460.50 (5).

     Memorandum: Defendant appeals from a resentence imposed upon
remittal of this matter to County Court (People v Backus, 56 AD3d
1119, revd in part and vacated in part 14 NY3d 876). In the prior
appeal from a judgment convicting defendant upon his plea of guilty of
two counts of vehicular assault in the second degree (Penal Law §
120.03 [1]) and one count of driving while intoxicated (Vehicle and
Traffic Law § 1192 [3]), we modified the judgment by vacating the
sentence, and we remitted the matter to the court “to resentence
defendant or to ‘entertain a motion by the People, should the People
be so disposed, to vacate the plea and set aside the conviction in its
entirety’ ” (Backus, 56 AD3d at 1120). Upon defendant’s further
appeal, the Court of Appeals reversed and vacated that part of the
order that authorized the court to entertain a motion by the People to
vacate the plea and set aside the conviction (People v Backus, 14 NY3d
876). The Court of Appeals stated that, “[d]efendant’s sentence
having been vacated, County Court is required to resentence defendant
in accordance with the law” (id. at 877).

     Upon remittal, the court resentenced defendant to indeterminate
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                                                         KA 10-01297

terms of imprisonment of 1 to 3 years for the vehicular assault counts
and a definite sentence of imprisonment of one year for driving while
intoxicated, and it directed that the sentences run concurrently. We
reject defendant’s contention that the resentence is illegal. The
original sentence was vacated on the ground that it was illegal, and
the court was not bound by the limits of the original sentence (see
People v Rogner, 285 AD2d 749, lv denied 96 NY2d 941). Upon
resentencing, the court was authorized to impose an indeterminate term
of imprisonment for each count of vehicular assault, which is a class
E felony (see Penal law § 70.00 [1]). Contrary to the further
contention of defendant, we conclude that, “based on [the] record,
there is no reasonable likelihood that the [resentence] . . . was the
result of vindictiveness” (People v Young, 94 NY2d 171, 180-181, rearg
denied 94 NY2d 876).

     We agree with defendant, however, that the resentence is unduly
harsh and severe. Defendant served eight months in jail prior to his
release pursuant to CPL 460.50 (1). Following his release, defendant
successfully completed chemical dependency treatment, refrained from
using alcohol, maintained employment, pursued a second college degree
and got back his driver’s license. “[H]aving regard to the nature and
circumstances of the crime[s] and to the history and character of the
defendant, [we are] of the opinion that a sentence of imprisonment
[was] necessary but that it [was] unduly harsh to impose an
indeterminate or determinate sentence” for each of the felony counts
(Penal Law § 70.00 [4]). Thus, as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [b]), we modify the resentence
by reducing the resentences for those counts to definite sentences of
imprisonment of one year (see Penal Law § 70.00 [4]).

     All concur except FAHEY, J., who dissents in part and votes to
affirm in the following Memorandum: I respectfully dissent in part.
Although County Court’s remarks at the proceeding that preceded the
resentence were intemperate, I agree with the majority’s conclusion
that, “based on [the] record, there is no reasonable likelihood that
the [resentence] . . . was the result of vindictiveness” (People v
Young, 94 NY2d 171, 180-181, rearg denied 94 NY2d 876). I cannot,
however, agree with the majority that the resentence is unduly harsh
and severe. Our power to substitute our own discretion for that of
the sentencing court is broad and plenary (see People v Delgado, 80
NY2d 780, 783; People v Hearn, 248 AD2d 889, 890), but it should be
exercised only in extraordinary circumstances (see generally People v
Massey, 45 AD3d 1044, 1048, lv denied 9 NY3d 1036). Here, the minimum
possible range for an indeterminate sentence of imprisonment for each
count of vehicular assault in the second degree (Penal Law § 120.03
[1]) was 1 to 3 years (§ 70.00 [3] [b]), which is exactly the term
that the court imposed upon resentencing with respect to those counts.
Indeed, the facts of this case do not present circumstances warranting
further reduction of the resentence to a definite sentence of
imprisonment of one year. I would therefore affirm the resentence and
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                                                         KA 10-01297

remit the matter to County Court for proceedings pursuant to CPL
460.50 (5).




Entered:   February 18, 2011                    Patricia L. Morgan
                                                Clerk of the Court
