Addressing a “somewhat novel issue” for the court, the Appellate Division, First Department has reversed a Bronx judge and ruled that a convicted sex offender who’s invoked the Fifth Amendment and has an appeal pending cannot be given a higher sex offender risk level for failing to admit to his crimes.

“Unlike cases where a defendant’s appeal is pending but there is no attempt on the appeal to withdraw or vacate his plea of guilty, or where a defendant’s denial of responsibility was made despite his guilty plea, here, defendant’s admissions would be detrimental in any potential retrial if his conviction were reversed,” said a five-justice panel of the First Department court in an opinion written by Justice Bahaati Pitt.