| People v Tamah |
| 2015 NY Slip Op 08009 [133 AD3d 923] |
| November 5, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vGodson Tamah, Appellant. |
Frederick P. Korkosz, Albany, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Lahtinen, J.P. Appeals (1) from a judgment of the County Court of Albany County(Herrick, J.), rendered March 3, 2014, convicting defendant upon his plea of guilty of thecrimes of petit larceny and resisting arrest, and (2) by permission, from an order of saidcourt, entered October 16, 2014, which denied defendant's motion pursuant to CPL440.10 to vacate the judgment of conviction, without a hearing.
Defendant, who is a citizen of Ghana, was charged in a complaint with grand larcenyin the fourth degree and resisting arrest. He agreed to plead guilty to a superior courtinformation charging him with the reduced charge of petit larceny, a misdemeanor, andresisting arrest and waived his right to appeal. County Court thereafter sentenced himpursuant to the plea agreement to concurrent terms of one year in jail. Defendantapparently is subject to deportation proceedings and he moved to vacate the judgmentpursuant to CPL 440.10 on the premise that he received ineffective assistance of counselregarding the immigration consequences of his plea. County Court denied the motionwithout a hearing and defendant now appeals from both the judgment of conviction and,by permission, the order denying his motion to vacate the judgment.
We affirm. As to defendant's direct appeal of his conviction, his claim of ineffectiveassistance of counsel, to the extent that it is alleged to have impacted the voluntariness ofhis plea, survives his appeal waiver but is not preserved for our review as the record doesnot reflect that he moved to withdraw his plea (see People v Morales, 119 AD3d 1082, 1084 [2014], lv[*2]denied 24 NY3d 1086 [2014]). Moreover,defendant did not make any statements during the plea colloquy that would trigger thenarrow exception to the preservation rule (see People v Pickett, 128 AD3d 1275, 1276 [2015], lvdenied 26 NY3d 930 [2015]; People v Watson, 115 AD3d 1016, 1017 [2014], lvdenied 24 NY3d 965 [2014]).
Turning to defendant's motion to vacate the judgment of conviction, his allegation inhis affidavit supporting the motion that defense counsel informed him that pleadingguilty to misdemeanors would not result in his deportation is belied by the record.Defense counsel informed County Court during the plea colloquy that he had adviseddefendant of the potential immigration consequences of the plea. Significantly, defendantaffirmed several times during the plea colloquy that he was aware that his guilty plea tothe misdemeanors could result in his deportation. Finally, the record reflects thatdefendant also sought advice from an immigration attorney prior to pleading guilty and,while again acknowledging the possibility of deportation, defendant informed CountyCourt that he believed that, by pleading guilty to misdemeanors, he stood "a betterchance" with the U.S. Citizenship and Immigration Services. Under these circumstances,County Court properly denied defendant's CPL 440.10 motion without a hearing (see People v Bassi, 111 AD3d845, 846 [2013]; People vAchouatte, 91 AD3d 1028, 1029 [2012], lv denied 18 NY3d 954 [2012],cert denied 568 US &mdash, 133 S Ct 216 [2012]).
Egan Jr., Devine and Clark, JJ., concur. Ordered that the judgment and order areaffirmed.