PEOPLE v. CUEVAS (2026)

Judgments, Supreme Court, Bronx County (Judith S. Lieb, J.), rendered September 18, 2023, convicting defendant, upon his plea of guilty, of three counts of burglary in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 3 to 6 years, unanimously affirmed.

Defendant validly waived his right to appeal under the “totality of the circumstances” (People v. Thomas, 34 N.Y.3d 545, 559, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied 589 U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020]).  The appeal waiver was valid even though “neither the oral colloquy nor the written waiver advised defendant of his right to counsel on appeal” concerning the claims which would survive a written waiver, as “the court did not imply that by waiving appeal, defendant would forfeit his right to appellate counsel for claims that survived the waiver” (People v. Santiago 242 A.D.3d 519, 520, 241 N.Y.S.3d 47 [1st Dept. 2025] [citations omitted]).

Defendant's valid waiver of his right to appeal forecloses review of his excessive sentence claim (id.).  In any event, we perceive no basis to reduce defendant's sentence.  Defendant's ineffective assistance of counsel claim is unreviewable on direct appeal because it involves matters outside of the record (see e.g. People v. McCray, 165 A.D.3d 595, 597, 86 N.Y.S.3d 68 [1st Dept. 2018], lv denied 32 N.Y.3d 1175, 97 N.Y.S.3d 590, 121 N.E.3d 218 [2019]).