THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. NATHAN HULME DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. NATHAN HULME, DEFENDANT–APPELLANT.

KA 15–01124

Decided: February 10, 2017

PRESENT:  SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND NEMOYER, JJ. NORMAN P. EFFMAN, PUBLIC DEFENDER, WARSAW, FOR DEFENDANT–APPELLANT. DONALD G. O'GEEN, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of two counts of perjury in the first degree (Penal Law § 210.15).  Defendant contends that his postverdict waiver of the right to appeal and his withdrawal of his CPL 330.30 motion should be invalidated as a matter of public policy.  We reject that contention.  We note that defendant is not challenging the fact that his waiver of the right to appeal was knowing and voluntary (see People v. Allick, 72 AD3d 1615, 1616;  see generally People v. Turck, 305 A.D.2d 1072, 1072, lv. denied 100 N.Y.2d 566);  instead, he contends that the waiver is invalid on public policy grounds because it insulates from appellate review the ineffective assistance that he allegedly received in a prior reckless endangerment case, i.e., the case in which he committed perjury.  Defendant did not take an appeal from that judgment, however, and the waiver of the right to appeal in the instant case does not preclude such an appeal.  Thus, defendant's complaints regarding defense counsel's performance in that prior case are not properly before us.  In any event, we conclude that defendant's waiver of the right to appeal in the instant case does not violate public policy inasmuch as “[i]t was his choice to accept a lighter sentence rather than risk the delay and outcome of an appeal or a new trial.  Having made his choice, there is no reason for [us] to interfere” (People v. Holman, 89 N.Y.2d 876, 878).  Furthermore, because defendant's waiver of the right to appeal is valid, there is no basis to reinstate his CPL 330.30 motion.

Defendant's remaining contentions, including that the prosecutor's comments during summation deprived him of a fair trial and that his conviction is not supported by legally sufficient evidence, are barred by his valid waiver of the right to appeal (see generally Allick, 72 AD3d at 1616;  People v. Dickerson, 309 A.D.2d 966, 967, lv denied 1 NY3d 596).

Frances E. Cafarell

Clerk of the Court