PEOPLE v. McKENZIE (2006)

Appeal from a judgment of the Supreme Court (Main Jr., J.), rendered October 18, 2004 in Franklin County, convicting defendant upon his plea of guilty of the crime of aggravated harassment of an employee by an inmate.

Defendant waived indictment and pleaded guilty to aggravated harassment of an employee by an inmate.   This plea was in satisfaction of a superior court information charging that crime and an unrelated pending indictment charging promoting prison contraband in the first degree.   As part of the plea agreement, the People recommended a prison term of 2 to 4 years.   Supreme Court imposed upon defendant, as a second felony offender, the maximum prison sentence of 2 1/212 to 5 years and a $5,000 fine.   Defendant appeals.

 We affirm.   The sentencing court must exercise its discretion to determine the appropriate sentence and is not bound by the People's recommendation (see People v. Kane, 6 A.D.3d 986, 987, 775 N.Y.S.2d 603 [2004] ).   Viewing the plea colloquy as a whole, Supreme Court informed defendant of the potential maximum sentence and fine and that the plea agreement included a recommendation by the People, without any commitment by the court.   The court did not abuse its discretion by imposing the maximum sentence, after considering defendant's criminal history and the reprehensible nature of the present offense wherein he threw feces at a prison nurse (see People v. Stokes, 290 A.D.2d 71, 77, 736 N.Y.S.2d 781 [2002], lv. denied 97 N.Y.2d 762, 742 N.Y.S.2d 623, 769 N.E.2d 369 [2002], cert. denied 537 U.S. 859, 123 S.Ct. 230, 154 L.Ed.2d 97 [2002] ).

Furthermore, considering the nature of the crime, and that defendant was informed of the potential fine during the plea proceedings, Supreme Court did not abuse its discretion in imposing a fine to impress upon defendant the severity of his conduct (see People v. Benjamin, 8 A.D.3d 833, 834, 778 N.Y.S.2d 330 [2004];  People v. Brickey, 3 A.D.3d 603, 604, 769 N.Y.S.2d 909 [2004], lv. denied 2 N.Y.3d 737, 778 N.Y.S.2d 463, 810 N.E.2d 916 [2004] ).

ORDERED that the judgment is affirmed.

KANE, J.

CREW III, J.P., MUGGLIN, ROSE and LAHTINEN, JJ., concur.