People v. Ortiz

159 N.Y.S.3d 715, 202 A.D.3d 1006, 2022 NY Slip Op 01054

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 16, 2022
• Docket: 2021-03409
• Status: Published

Opinion

People v Ortiz (2022 NY Slip Op 01054)

People v Ortiz

2022 NY Slip Op 01054

Decided on February 16, 2022

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 16, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
ANGELA G. IANNACCI, J.P.
REINALDO E. RIVERA
ROBERT J. MILLER
JOSEPH J. MALTESE, JJ.

2021-03409

[*1]The People of the State of New York, respondent,

v

Frank E. Ortiz, appellant.

Raymond A. Tierney, District Attorney, Riverhead, NY (Thomas C. Costello of counsel), for respondent.

Richard L. Herzfeld, New York, NY, for appellant.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Suffolk County (Chris Ann Kelley, J.), dated April 22, 2021, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738), in which he moves for leave to withdraw as counsel for the appellant.

ORDERED that the motion of Richard L. Herzfeld for leave to withdraw as counsel for the appellant is granted, and he is directed to turn over all papers in his possession to the appellant's new counsel assigned herein; and it is further,

ORDERED that Salvatore C. Adamo, 1345 Avenue of the Americas, 2nd Fl., New York, New York 10105, is assigned as counsel to perfect the appeal; and it is further,

ORDERED that the respondent is directed to furnish a copy of the certified transcript of the proceedings to the appellant's 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. The appellant was granted leave to proceed as a poor person in the Supreme Court, Suffolk County, and, pursuant to Correction Law § 168-n(3), his status as a poor person continues on appeal. 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 670.9[a]).

Upon this Court's independent review of the record, we conclude that nonfrivolous issues exist, including, but not necessarily limited to, whether, following a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C), points were properly assessed under risk factor 9 (prior criminal history) (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 13-14 [2006] [hereinafter Guidelines]) and risk factor 12 (acceptance of responsibility) (see Guidelines at 15-16; People v Hagen, 193 AD3d 991), and whether the defendant's request for a downward departure from the presumptive risk level was properly denied (see People v Gillotti, 23 NY3d 841, 861; People v Wyatt, 89 AD3d 112, 128). Accordingly, the assignment of new counsel is warranted (see People v Stokes, 95 NY2d 633, 638; Matter of Giovanni [*2]S. [Jasmin A.], 89 AD3d 252).

IANNACCI, J.P., RIVERA, MILLER and MALTESE, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court