State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: August 6, 2015 519408
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
DONALD R. GRIEST JR.,
Appellant.
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Calendar Date: June 8, 2015
Before: Peters, P.J., McCarthy, Rose and Devine, JJ.
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Frank A. Sarat, Homer, for appellant.
Mark D. Suben, District Attorney, Cortland (Elizabeth
McGrath of counsel), for respondent.
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Appeal from an order of the County Court of Cortland County
(Ames, J.), rendered March 20, 2014, which classified defendant
as a risk level III sex offender pursuant to the Sex Offender
Registration Act.
In 2008, defendant was convicted of sexual abuse in the
first degree and, following his release from prison, he was
required to register as a sex offender under the Sex Offender
Registration Act (see Correction Law art 6-C). He was
presumptively classified as a risk level III sex offender based
upon the score on the risk assessment instrument, and the Board
of Examiners of Sex Offenders recommended that he be classified
as such. Thereafter, a hearing was conducted before County Court
to determine the appropriate risk level classification.
Following a continuation of the hearing, the court ultimately
classified defendant as a risk level III sex offender based upon
-2- 519408
the risk assessment instrument score. Defendant now appeals.
Appellate counsel seeks to be relieved of his assignment of
representing defendant on the ground that there are no
nonfrivolous issues to be raised on appeal. The record
discloses, however, that defendant argued to County Court that he
had been erroneously assessed too many points in specific risk
assessment categories and, as a result, he should have been
presumptively scored as a risk level II sex offender (see People
v Irizarry, 89 AD3d 1246, 1247 [2011]; People v Meyer, 52 AD3d
921, 921-922 [2008]). Without expressing any opinion on the
ultimate merit of these or any other potential issues, counsel's
request to be relieved of assignment is granted and new counsel
shall be assigned to address any nonfrivolous issues that the
record may disclose (see People v Stokes, 95 NY2d 633 [2001];
People v Cruwys, 113 AD2d 979, 980 [1985], lv denied 67 NY2d 650
[1986]).
Peters, P.J., McCarthy, Rose and Devine, 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