State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 5, 2015 106673 

 107125

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

GODSON TAMAH,

Appellant.

________________________________

Calendar Date: September 16, 2015

Before: Lahtinen, J.P., Egan Jr., Devine and Clark, JJ.

__________

Frederick P. Korkosz, Albany, for appellant.

P. David Soares, District Attorney, Albany (Vincent Stark

of counsel), for respondent.

__________

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 the crimes of petit larceny

and resisting arrest, and (2) by permission, from an order of

said court, entered October 16, 2014, which denied defendant's

motion pursuant to CPL 440.10 to vacate the judgment of

conviction, without a hearing.

Defendant, who is a citizen of Ghana, was charged in a

complaint with grand larceny in the fourth degree and resisting

arrest. He agreed to plead guilty to a superior court

information charging him with the reduced charge of petit

larceny, a misdemeanor, and resisting arrest and waived his right
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to appeal. County Court thereafter sentenced him pursuant to the

plea agreement to concurrent terms of one year in jail. 

Defendant apparently is subject to deportation proceedings and he

moved to vacate the judgment pursuant to CPL 440.10 on the

premise that he received ineffective assistance of counsel

regarding the immigration consequences of his plea. County Court

denied the motion without 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 ineffective assistance of counsel, to

the extent that it is alleged to have impacted the voluntariness

of his plea, survives his appeal waiver but is not preserved for

our review as the record does not reflect that he moved to

withdraw his plea (see People v Morales, 119 AD3d 1082, 1084

[2014], lv denied 24 NY3d 1086 [2014]). Moreover, defendant did

not make any statements during the plea colloquy that would

trigger the narrow exception to the preservation rule (see People

v Pickett, 128 AD3d 1275, 1276 [2015], lvs denied 26 NY3d 930,

933 [2015]; People v Watson, 115 AD3d 1016, 1017 [2014], lv

denied 24 NY3d 965 [2014]). 

Turning to defendant's motion to vacate the judgment of

conviction, his allegation in his affidavit supporting the motion

that defense counsel informed him that pleading guilty 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 advised defendant of the potential

immigration consequences of the plea. Significantly, defendant

affirmed several times during the plea colloquy that he was aware

that his guilty plea to the misdemeanors could result in his

deportation. Finally, the record reflects that defendant also

sought advice from an immigration attorney prior to pleading

guilty and, while again acknowledging the possibility of

deportation, defendant informed County Court that he believed

that, by pleading guilty to misdemeanors, he stood "a better

chance" with the US Immigration Services. Under these

circumstances, County Court properly denied defendant's CPL

440.10 motion without a hearing (see People v Bassi, 111 AD3d
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845, 846 [2013]; People v Achouatte, 91 AD3d 1028, 1029 [2012],

lv denied 18 NY3d 954 [2012], cert denied ___ US ___, 133 S Ct

216 [2012]). 

Egan Jr., Devine and Clark, JJ., concur.

ORDERED that the judgment and order are affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court