        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

153
KA 15-01124
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

NATHAN HULME, DEFENDANT-APPELLANT.


NORMAN P. EFFMAN, PUBLIC DEFENDER, WARSAW, FOR DEFENDANT-APPELLANT.

DONALD G. O’GEEN, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Wyoming County Court (Michael M.
Mohun, J.), rendered February 26, 2015. The judgment convicted
defendant, upon a jury verdict, of perjury in the first degree (two
counts).

     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
AD2d 1072, 1072, lv denied 100 NY2d 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 NY2d 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.
                                 -2-                           153
                                                         KA 15-01124

     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 AD2d 966,
967, lv denied 1 NY3d 596).




Entered:   February 10, 2017                   Frances E. Cafarell
                                               Clerk of the Court
