People v McKenzie
2006 NY Slip Op 02935 [28 AD3d 942]
April 20, 2006
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, June 21, 2006

The People of the State of New York, Respondent, v Leonard McKenzie, Appellant.


Kane, J. 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 2½ 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 AD3d 986, 987 [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 AD2d 71, 77 [2002], lv denied 97 NY2d 762 [2002], cert denied 537 US 859 [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 AD3d 833, 834 [2004]; People v Brickey, 3 AD3d 603, 604 [2004], lv denied 2 NY3d 737 [2004]).

Crew III, J.P., Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the judgment is affirmed.