                          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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                                                   107125

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
