People v Tschorn

2018 NY Slip Op 05640 [164 AD3d 970]

August 2, 2018

Appellate Division, Third Department

As corrected through Wednesday, October 3, 2018

[*1]

The People of the State of New York,Respondent, v Brian Tschorn, Appellant.

David Kleban, New York City, for appellant.

J. Anthony Jordan, District Attorney, Fort Edward (Joseph A. Frandino of counsel), forrespondent.

Aarons, J. Appeal from a judgment of the County Court of Washington County (McKeighan,J.), rendered January 13, 2017, convicting defendant upon his plea of guilty of the crimes ofreckless endangerment in the first degree, criminal mischief in the fourth degree and prohibiteduse of weapons.

In July 2016, defendant was indicted and charged with reckless endangerment in the firstdegree, criminal mischief in the fourth degree and prohibited use of weapons. The chargesstemmed from an incident that occurred approximately one month earlier when defendant and hiswife, who then were staying at a family member's residence in rural Washington County, awokelate at night to an alarm that had been triggered on the driveway leading to the residence.Although differing accounts of the ensuing incident were offered, defendant admittedly firedmultiple rounds from his .22 caliber rifle in the direction of the pick-up truck that he encounteredin his driveway. Plea negotiations followed and, when no agreement could be reached, defendantagreed to plead to the entire indictment without any promise as to sentencing. After acceptingdefendant's plea, County Court adjourned the matter for sentencing. Following review of theparties' extensive presentencing submissions, County Court imposed the maximum prisonterm—21/3 to 7 years—upon defendant's conviction of recklessendangerment in the first degree and concurrent prison terms upon the remaining counts of theindictment. Defendant now appeals, contending only that the sentence imposed was harsh andexcessive.

[*2] We affirm. "A sentence that fallswithin the permissible statutory range will not be disturbed unless it can be shown that thesentencing court abused its discretion or extraordinary circumstances exist warranting amodification" (People v Miller, 160AD3d 1040, 1044 [2018] [internal quotation marks and citations omitted]; see People v Cole, 150 AD3d1476, 1482 [2017]). Notwithstanding the presence of certain mitigating factors, the factremains that defendant admittedly fired multiple shots at the pick-up truck that he encountered inhis driveway—without any regard for the truck's occupant and/or the potentiallylife-threatening consequences of such actions—and that he continued firing his weaponuntil all of the shells were expended. Indeed, according to the letter authored by the 71-year-oldvictim, which was read into the record at sentencing, defendant continued to fire in the directionof the victim's truck even as the victim "sped away" and exited defendant's property.Accordingly, we discern no basis upon which to disturb the sentence imposed (see People v Levy, 52 AD3d 1025,1028-1029 [2008]; People vBonelli, 41 AD3d 972, 974 [2007], lv denied 9 NY3d 921 [2007]).

Garry, P.J., Egan Jr., Mulvey and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.