39 A.D.3d 946
N.Y. App. Div.
2007

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v DAVID JUDSON, Appellant.

Appellate Division of the Supreme Court of New York

833 NYS2d 693

Appeal from a judgment of the County Court of Tioga County (Sgueglia, J.), rendered September 10, 2004, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.

Defendant pleaded guilty to the crimes of attempted rape in the first degree and sexual abuse in the first degree after he had inappropriate sexual contact with two female relatives, ages 10 and 14. Prior to his release to parole supervision, the Board of Examiners of Sex Offenders recommended that defendant be classified as a level III sex offender pursuant to the Sex Offender Registration Act (see Correction Law art 6-C) based upon applicable factors contained in the risk assessment instrument. County Court agreed with the Board’s recommendation, resulting in defendant’s appeal.

Defense 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. Based on our review of the sparse record, we disagree. The People bore the burden of proving, by clear and convincing evidence, the facts supporting the risk level determination (see Correction Law § 168-n [3]; People v Arotin, 19 AD3d 845, 847 [2005]). Defendant contested the portion of the risk assessment instrument assigning him points for a continuing course of conduct, but the record does not contain any proof on that issue. Accordingly, as at least one nonfrivolous issue exists, we will assign defendant new counsel to address any issues that the record may disclose.

Cardona, P.J., Mercure, Spain, Lahtinen and Kane, JJ., concur. Ordered that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.