Opinion
14289.
November 4, 2004.
Appeal from a judgment of the County Court of Broome County (Mathews, J.), rendered July 2, 2002, which classified defendant as a risk level III sex offender under the Sex Offender Registration Act.
Before: Crew III, J.P., Carpinello, Mugglin, Lahtinen and Kane, JJ., concur.
Prior to his release on parole from a conviction of sodomy in the second degree, the Board of Examiners of Sex Offenders recommended that defendant be classified as a risk level III sex offender pursuant to the Sex Offender Registration Act ( see Correction Law art 6-C), even though the risk assessment instrument indicated that risk level II was the presumptive category in which defendant should be placed. After a hearing, County Court followed the Board's recommendation and classified defendant as a risk level III sex offender.
On appeal, defense counsel seeks to be relieved of his assignment as counsel for defendant on the ground that there are no nonfrivolous issues that can be raised on appeal. We disagree. A review of the record reveals a nonfrivolous issue of "arguable merit" ( People v. Cruwys, 113 AD2d 979, 980, lv denied 67 NY2d 650; see People v. Stokes, 95 NY2d 633, 636), specifically, whether there was clear and convincing evidence warranting a departure from the presumptive risk level and enhancing defendant's sex offender classification ( see People v. Brown, 7 AD3d 831; People v. Bottisti, 285 AD2d 841). Accordingly, without expressing any opinion as to the ultimate merit of the potential issue, the request of counsel to be relieved of his assignment is granted and new appellate counsel shall be assigned to address any nonfrivolous issues which the record may disclose.
Ordered that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.