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The People of the State of v. Tony J. Irizarry

State of New York Supreme Court, Appellate Division Third Judicial Department


November 10, 2011

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
TONY J. IRIZARRY, APPELLANT.

Appeal from an order of the County Court of Montgomery County (Catena, J.), entered May 27, 2010, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.

MEMORANDUM AND ORDER

Calendar Date: September 28, 2011

Before: Mercure, J.P., Peters, Spain, Kavanagh and Stein, JJ.

In December 2007, defendant pleaded guilty to one count of criminal sexual act in the second degree (see Penal Law § 130.45

[1]) in satisfaction of a 12-count indictment. He was sentenced to a prison term of three years, to be followed by a period of postrelease supervision. In anticipation of his release from prison, the Board of Examiners of Sex Offenders prepared a risk assessment instrument in accordance with the Sex Offender Registration Act (see Correction Law art 6-C). Defendant was presumptively classified as a risk level III sex offender and, following a hearing, County Court adopted the Board's recommendation and classified defendant as a risk level III sex offender. Defendant now appeals.

Appellate counsel seeks to be relieved of his assignment on the ground that there are no non-frivolous issues to be raised on appeal. Upon our review of the record and defense counsel's brief, we conclude that there are issues of "arguable merit" (People v Cruwys, 113 AD2d 979, 980 [1985], lv denied 67 NY2d 650 [1986]), including whether County Court properly rejected defendant's argument that he was assessed too many points in specific risk assessment categories, thereby raising the risk level of his presumptive classification (see People v Meyer, 52 AD3d 921, 921-922 [2008]). Accordingly, without passing judgment on the ultimate merit of this issue, we grant counsel's request for leave to withdraw and assign new counsel to address this issue and any others that the record may disclose (see People v Stokes, 95 NY2d 633 [2001]; People v Cruwys, 113 AD2d at 980).

Mercure, J.P., Peters, Spain, Kavanagh and Stein, JJ., concur.

ORDERED that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.

ENTER:

Robert D. Mayberger Clerk of the Court

20111110

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