Appeal from an order of the County Court of Warren County (Hall Jr., J.), entered January 29, 2010, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.
Calendar Date: September 28, 2011
Before: Peters, J.P., Spain, Rose, Stein and Egan Jr., JJ.
Following his conviction of the crime of sexual misconduct, defendant was presumptively classified as a risk level II sex offender under the Sex Offender Registration Act (see Correction Law art 6-C) based upon the scores appearing on the risk assessment instrument. Thereafter, the matter was brought before County Court for a hearing to determine the appropriate risk level classification. At the conclusion of the hearing, County Court determined that an upward modification was warranted and classified defendant as a risk level III sex offender. Defendant now appeals.
Appellate counsel seeks to be relieved of his assignment of representing defendant on the ground that there are no non-frivolous issues to be raised on appeal. Based upon our review of the record, we disagree. County Court made a discretionary decision to increase the presumptive risk level classification contained in the risk assessment instrument to a risk level III based upon information contained in the presentence investigation report and other documentation, including the report of a clinical psychologist who examined defendant. Given the nature of the decision, a viable non-frivolous argument could certainly be made on defendant's behalf that other factors warranted either maintaining the presumptive risk level classification or modifying such classification downward (see People v Freeman, 34 AD3d 1106, 1107 ). Accordingly, without passing judgment on the ultimate merit of such an argument, counsel's application to be relieved of assignment is granted and new counsel is assigned to address this issue and any others that the record may disclose (see People v Stokes, 95 NY2d 633, 636 ; People v Cruwys, 113 AD2d 979 , lv denied 67 NY2d 650 ).
Peters, J.P., Spain, Rose, Stein and Egan Jr., JJ., concur.
ORDERED that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.
Robert D. Mayberger Clerk of the Court
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