People v. Mohammed

• Decision Date: 17 November 2016
• Citation: 40 N.Y.S.3d 795 (Mem),144 A.D.3d 1321,2016 N.Y. Slip Op. 07713
• Parties: The PEOPLE of the State of New York, Respondent, v. Abdul MOHAMMED, Appellant.
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 1321

40 N.Y.S.3d 795 (Mem)

2016 N.Y. Slip Op. 07713

The PEOPLE of the State of New York, Respondent,

v.Abdul MOHAMMED, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 17, 2016.

Michael C. Ross, Bloomingburg, for appellant.

P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.

Before: PETERS, P.J., GARRY, DEVINE, CLARK and AARONS, JJ.

PETERS, P.J.

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered March 18, 2014, convicting defendant upon his plea of guilty of the crimes of petit larceny and resisting arrest.

Defendant, a citizen of Ghana, waived indictment and agreed to be charged in a superior court information with the crimes of petit larceny and resisting arrest. He pleaded guilty to these crimes and waived his right to appeal, both orally and in writing. Under the terms of the plea agreement, he was to be sentenced to consecutive one-year jail terms. At sentencing, County Court acceded to defense counsel's request, unopposed by the People, to sentence defendant to 364 days in jail for each crime due to the “immigration consequences.” County Court proceeded to sentence defendant to consecutive terms of 364 days in jail. Defendant, who is being held on a detainer for deportation, now appeals.

Defendant contends that he was denied the effective assistance of counsel because counsel failed to properly advise him of the immigration consequences of his guilty plea, thereby rendering it involuntary. Although this claim is not precluded by defendant's valid waiver of the right to appeal, it is unpreserved for our review as the record does not disclose that he made an appropriate postallocution motion (see People v. Austin, 141 A.D.3d 956, 957–958, 35 N.Y.S.3d 580 [2016] ; People v. Tamah, 133 A.D.3d 923, 924, 20 N.Y.S.3d 436 [2015] ). Moreover, given that defendant did not make any statements during the plea colloquy that cast doubt upon his guilt or called into question the voluntariness of his plea, the narrow exception to the preservation requirement is inapplicable (see People v. Lobaton, 140 A.D.3d 1534, 1535, 33 N.Y.S.3d 780 [2016], lv. denied 28 N.Y.3d 972, –––N.Y.S.3d ––––, ––– N.E.3d –––– [2016] ; People v. Perkins, 140 A.D.3d 1401, 1403, 33 N.Y.S.3d 584 [2016] ). Furthermore, to the extent that defendant bases his claim upon alleged misinformation imparted to him by counsel that is outside the record, the appropriate remedy is for defendant to...