Crimes - Right to Counsel - Assignment of New Counsel - Failure to Correct Mistake Regarding Sex Offender Risk Assessment

Appeal by the defendant from an order of the County Court, Suffolk County (Karen M. Wilutis, J.), dated October 17, 2024, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

Ordered that on the Court's own motion, Salvatore C. Adamo, 1345 Avenue of the Americas, 2nd Fl., New York, NY 10105, is relieved as counsel for the appellant, and he is directed to turn over all papers in his possession related to the appeal from the order to new counsel assigned herein; and it is further,

Ordered that Richard L. Herzfeld, 112 Madison Avenue, 8th Floor, New York, NY 10016, is assigned as counsel to perfect the appeal from the order; and it is further,

Ordered that the respondent is directed to furnish a copy of the certified transcript of the proceedings to the new assigned counsel; and it is further,

Ordered that new counsel shall serve and file a brief on behalf of the appellant within 90 days of this decision and order on motion, and the respondent shall serve and file its brief within 30 days after the brief on behalf of the appellant is served and filed. By prior decision and order on motion of this Court dated May 16, 2025, pursuant to CPL 380.55 (2), this Court directed that the appeal be heard on the original papers (including a certified transcript of the proceedings, if any) and on the briefs of the parties. The parties are directed to upload, through the digital portal on this Court's website, digital copies of their respective briefs, with proof of service of one hard copy on each other (see 22 NYCRR 1250.9 [a]).

The defendant was convicted, upon his plea of guilty, of course of sexual conduct against a child in the first degree and three counts of criminal sexual act in the first degree. After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C), the County Court assessed the defendant 155 points on the risk assessment instrument and designated him a level three sex offender. The defendant appeals.

On appeal, the defendant's assigned counsel's sole contention is that the County Court improperly assessed 10 points under risk factor 12. This contention is based on a misconception of the record, as the court did not assess any points under that risk factor. Even after [*2]this was pointed out in the respondent's brief, and after this Court directed assigned counsel to appear for oral argument, assigned counsel was still under this misconception at the time of oral argument. Assigned counsel also took no action to correct his mistake. It is apparent that the defendant did not receive effective assistance of counsel on the appeal, and under the unique circumstances of this case, assigned counsel is relieved and new appellate counsel is assigned to represent the defendant (see People v Cortez-Moreno, 194 AD3d 953, 954 [2021]; People v Edwards, 281 AD2d 640 [2001]). LaSalle, P.J., Voutsinas, Love and Hom, JJ., concur.