It often takes the trained criminal eye of a New York criminal defense attorney or lawyer to locate and assess the nuances between similar statutes. Deciphering the language between similar statutes could mean the difference between facing a misdemeanor or a violent felony. One example of this found in statutes relating to Kidnapping and Unlawful Imprisonment. Although each of these statutes have their own unique language, at a basic level the difference between Kidnapping (NY Penal Law 135.20 and 125.25) and Unlawful Imprisonment (NY Penal Law 135.05 and 135.10) hinges on two key words defined by statute and interpreted by case law. Those key words are “restrain” and “abduct.” Today’s entry will address the general definitions applicable to Kidnapping and Unlawful Imprisonment. Additionally, I will give an overview of the crimes of Unlawful Imprisonment in the First and Second Degrees. At a later date I will analyze the Kidnapping statute under New York State law.
､ 135.00 Unlawful Imprisonment, Kidnapping and Custodial Interference; definitions of terms
The following definitions are applicable to this article:
1. “Restrain” means to restrict a person’s movements intentionally and unlawfully in such manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent and with knowledge that the restriction is unlawful. A person is so moved or confined “without consent” when such is accomplished by (a) physical force, intimidation or deception, or (b) any means whatever, including acquiescence of the victim, if he is a child less than sixteen years old or an incompetent person and the parent, guardian or other person or institution having lawful control or custody of him has not acquiesced in the movement or confinement.
2. “Abduct” means to restrain a person with intent to prevent his liberation by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use deadly physical force.
3. “Relative” means a parent, ancestor, brother, sister, uncle or aunt.
Unlawful Imprisonment in the First and Second Degrees (NY Penal Law 135.05 and 135.10) after the jump…
､ 135.05 Unlawful Imprisonment in the Second Degree:
A person is guilty of Unlawful Imprisonment in the Second Degree when he restrains another person.
Unlawful Imprisonment in the Second Degree is a class A misdemeanor punishable by up to one year in jail.
､ 135.10 Unlawful Imprisonment in the First Degree
A person is guilty of Unlawful Imprisonment in the First Degree when he restrains another person under circumstances which expose the latter to a risk of serious physical injury.
Unlawful Imprisonment in the First Degree is a class E felony punishable by up to four years in prison.
Unlike the differences between Kidnapping and Unlawful Imprisonment, the differences between Unlawful Imprisonment in the First and Second Degrees stems from the former requiring that the victim be exposed to a risk of serious physical injury. To make matters slight more complicated, serious physical injury has its own definition. Although I will not address that definition in this blog entry, it is important to understand that disfigurement or protracted loss of health falls in this definition. Therefore, if a victim was subject to a black eye or possible cuts and bruises, then the serious physical injury element would not be satisfied.
For further analysis of the crimes of Kidnapping, Unlawful Imprisonment and Custodial Interference, contact the criminal defense lawyers and former Manhattan prosecutors Saland Law PC or read our future entries on this subject.