PEOPLE v. SHUTE (1997)

Appeal from a judgment of the County Court of Franklin County (Main Jr., J.), rendered January 6, 1997, convicting defendant upon his plea of guilty of the crime of rape in the third degree.

Defendant was convicted upon his plea of guilty of the crime of rape in the third degree after he admitted to engaging in sexual intercourse with a 16-year-old female.   We reject defendant's claim that County Court abused its discretion in sentencing him to a prison term of 1 1/3 to 4 years because the sentence was more harsh than that recommended by the People who, in exchange for his plea, had agreed to follow the sentencing recommendation of the Probation Department.   It is settled that a “sentencing court retains the discretionary power to impose an appropriate sentence notwithstanding the terms of a plea bargain agreement or the recommendations of a probation officer” (People v. Jarvis, 233 A.D.2d 632, 649 N.Y.S.2d 847, lv denied 89 N.Y.2d 943, 655 N.Y.S.2d 894, 678 N.E.2d 507).   There was no abuse of discretion in sentencing defendant to the harshest sentence statutorily permissible.   Defendant admittedly pursued a sexual relationship with the victim, which resulted in her becoming pregnant, despite a prior conviction for harassing her followed by a conditional dismissal of the matter provided that he stay away from her.   Given these facts and defendant's apparent lack of remorse, we find no basis upon which to disturb the sentence imposed (see, e.g., People v. Fitzgerald, 239 A.D.2d 711, 657 N.Y.S.2d 487;  People v. Whitman, 202 A.D.2d 871, 609 N.Y.S.2d 690, lv denied 83 N.Y.2d 972, 616 N.Y.S.2d 25, 639 N.E.2d 765).

ORDERED that the judgment is affirmed.

MEMORANDUM DECISION.