¶1(dissenting). I join Justice Kassal in his dissent, only writing to stress our reproach for the trial court’s imputation of significance to the jury’s partial deliberations. Since none of the jurors in any way indicated that either their “guilty” verdict on the second degree attempt or their “not guilty” verdict on the first degree attempt charge was accompanied by “reasonable doubt” (People v Garvin, 90 AD2d 682), the court was without power to go behind the verdicts and impeach the acquittal for purposes of sentencing.
¶2In addition, I believe that the sentence imposed was excessive. The jury acquitted defendant-appellant of attempted murder in the first degree under the first count of the indictment, which charged that he “attempted to cause the death of said Richard Messemer, a Police Officer in the course of performing his official duties and known to be a Police Officer by the said defendant, by shooting at him with a pistol” and convicted him instead of attempted *202murder in the second degree. Thereby the jury indicated its resolution in favor of the defendant of the factual issue of whether he knew the men who were chasing him and exchanging shots with him were police officers. The majority places great emphasis upon the June 15, 1979 warrant issued for defendant, characterizing him as “a fugitive from justice”. What is not mentioned is the stay of execution of sentence, in effect up until this court affirmed the prior conviction, and defendant’s testimony that he had not been informed of the affirmance, the June 15 appearance date or the warrant. Thus, while Davis was indeed a “wanted man”, he did not have the requisite awareness of his status to be “a fugitive from justice”. And if he did not realize they were the police but fled in fear, believing them to be friends of Puig out to do him in, a different perspective is gained from the point of view of sentencing. There is no evidence of premeditated calculation or cruelty of the type which would ordinarily call for a maximum sentence. Further, the only person injured was defendant, who was taken to the hospital in critical condition from a bullet which entered his upper back and exited through the right side of his neck.
¶3Davis has substantial prior criminal involvement. This is his third felony conviction. Moreover, the exercise of the sentencing court’s discretion is normally entitled to great weight. However, defendant was not only sentenced to the maximum term of 12V2 to 25 years under this conviction, but the sentence was made consecutive to a prior outstanding sentence of 5 to 10 years, making it as effective as a minimum term of 17V2 years for parole purposes.
¶4Given the circumstances of the crime and the close factual situation, mitigation seems in order. I would exercise our discretion by reducing the sentence to the extent of making the terms imposed concurrent with the prior sentence.
¶5Kupferman, J. P., and Bloom, J., concur with Ross, J.; Carro and Kassal, JJ., dissent in separate opinions.
¶6Judgment, Supreme Court, Bronx County, rendered on March 5, 1980, affirmed.