The crime of Kidnapping, New York Penal Law 135.20, is one of the worst “sounding” crimes one can be accused of. Most people, whether you are a prosecutor, criminal lawyer, juror, teacher, carpenter or justice of the criminal court (or any professional in between), instinctively think the worse when such an accusation or arrest is made. Sometimes the evidence supports such an assumption while other times it clearly does not. Regardless, as I routinely note, an arrest is not proof of guilt beyond a reasonable doubt. That burden of proof always remains with the District Attorney. Commentary behind us, the following entry helps further define and decipher the law of Second Degree Kidnapping, New York Penal Law 135.20, and its various elements.
In People v. Denson, NYLJ 1202643604584, (App. Div., 1st, Decided February 18, 2014), the Appellate Division wrestled with the crime of Attempted Kidnapping in the Second Degree. Here, the facts established that defendant, a known (and formerly convicted) pedophile, made several calculated efforts to lure the victim, a 10-year old girl, to his apartment. On several occasions, the defendant asked the victim out to get ice cream, to go ice-skating, and to the movies. However, it was defendant’s insistence that the victim go to his apartment after he offered her his keys that gained the attention of the mother, who phoned the police. The lower court convicted the defendant of Second Degree Attempted Kidnapping; the defendant appealed.
In order to find ant defendant guilty, regardless of any prior record if at all, the People must establish that the defendant a) intended to hold the victim in his apartment, a place where she would not easily be found; b) that he made efforts to move or confine the victim without consent; and c) that defendant come dangerously near to achieving his objective (Penal Law 135.20).
In connection with the first element, the evidence showed that the 10-year old victim was unlikely to be found had she taken the defendant’s keys and entered his apartment. Thus, satisfying the first element.
Furthermore, the evidence left no doubt that defendant, a “highly-fixated” pedophile, attempted to restrain the victim i.e. to move her to a different location without her consent. The definition of restraint, in regard to a child less than 16 years of age, encompasses movement or confinement by “any means whatever,” including the acquiescence of the child (Penal Law 135.00(1)(b)). Although an adult must be confined or restrained by “force, intimidation, or deception,” the New York State Legislature recognized that children under 16 do not possess the same faculties. Thus, the second element had been met.
Finally, to reiterate, the facts showed that the defendant attempted to lure the victim to his apartment. Since the defendant worked in the hardware store of the first floor of the apartment building, he had the “opportunity” to observe the daily comings and goings of the victim and her mother. The defendant’s action in offering his apartment keys to the victim, coupled with his insistence she go to his apartment, came “dangerously near” to accomplishing his objective (People v. Cruz, 296 A.D.2d 22 (1st Dep’t, 2002)). The Court added that had the victim complied with the defendant’s request and entered his apartment, the crime of Second Degree Kidnapping would have been fully accomplished. Therefore, the finally element was satisfied.
Remember, the above case is an “ugly” one. The defendant was and is not a sympathetic character as a prior felon and sex offender. While it is easy to emotionally justify a conviction based on a person’s prior conduct, the law must be evenly applied to everyone and upheld in every case. No matter the facts, evidence, allegations or circumstances, the prosecution always carries the burden to prove a case beyond a reasonable doubt as it evidently did here.
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