Kidnapping in New York

It’s a common misconception that kidnapping is a crime with only one dimension and therefore, only one punishment. In reality, the charge of kidnapping encompasses a range of offenses including, but not limited to, sex trafficking, “traditional” kidnapping, and custodial interference.

Examples

For example, you can be charged with kidnapping under New York State Penal Law if you:

You and a non-custodial parent have transported your child beyond the time or geographical limits outlined in your custody agreement, or
have taken a minor without the permission of a legal guardian, even if the child went willingly, or
have otherwise seized an individual, minor or adult, against their will and held them in unlawful containment

If you’ve been arrested for kidnapping or expect to be investigated for kidnapping in the near future, what can you do?

Seek legal advice immediately. Under both New York State and Federal law, kidnapping is considered a felony. Kidnapping is a serious offense in New York State. The penalties for kidnapping are severe, and proper legal counsel is essential to establishing a suitable defense.

If you’ve been arrested for kidnapping or expect to be investigated for kidnapping in the near future, what can you do?

Kidnapping defined

Article 135 defines kidnapping in New York State. New York State’s Penal Law categorizes kidnapping in terms of two degrees of severity: first-degree kidnapping and second-degree kidnapping.

Regardless of the degree, the basic tenet remains the same: kidnapping involves the physical seizing, containment, and restriction of an individual without consent. You can be charged with kidnapping if you take an individual and hold them in unlawful confinement.

The elements of kidnapping

In a system in which you are innocent until proven guilty, the burden of proving that a particular crime occurred falls on the prosecution. Let’s delve a little bit more deeply into the elements of a kidnapping crime in order to better understand their meanings and implications.

Under Article 135, for a defendant to be convicted of kidnapping in a criminal trial for kidnapping, the prosecution must prove that:

the kidnapped or abducted person was taken and constrained against their will, or against the will of their lawful guardian

And, in the case of first-degree kidnapping charges,

the defendant committed, or did intend to commit, harmful or terrorizing acts toward the kidnapped or abducted person that resulted in injury or death

What is unlawful containment?

Unlawful containment means restricting the liberties of an individual, either through deception, force or threat of force. It is important to note that minors under the age of sixteen cannot lawfully consent and that relocating a minor without the permission of their legal guardian falls under the category of kidnapping.

For example, suppose Gerry and Kathy are neighbors. Gerry wants to go on a date with Kathy, but Kathy has been rejecting his advances. Gerry believes that Kathy would come to like him if only she would give him a chance. Gerry decides that he will offer Kathy a ride to a community function but, once she has entered his vehicle, he drives her to a remote location instead. Kathy is scared and wants to go home, but Gerry will not release her until she agrees to go on a date with him.

This is an example of kidnapping. Gerry has unlawfully seized Kathy and is constraining her against her will. She has made clear statements that she is not comfortable with the situation and wants to leave, but Gerry has prevented her from doing so.

What now?

Gerry can be charged with kidnapping.

In that case that Gerry does not physically, sexually, or otherwise harm Kathy during the course of the abduction, and that Kathy is returned home safely within twelve hours, Gerry will likely be charged with second-degree kidnapping.

On the other hand, if Gerry abuses Kathy, sexually assaults her, demands a ransom from her family for her safe return, or if Kathy dies while being detained by Gerry, he will be charged with first-degree kidnapping under New York State Penal Law.

What can you be charged with two degrees of kidnapping?

The New York Statutes most directly related to kidnapping are:

Penal Law § 135.20 Kidnapping in the second degree.
Penal Law § 135.25 Kidnapping in the first degree.

The degrees of kidnapping are designated based on the level of harm done to the kidnapped person during the time of the offense. Harsher sentences are often implemented when the victim is underage, elderly, or otherwise debilitated.

There is no minimum time period in New York State law that a victim must be held in order for the offender to be charged with kidnapping, nor is there a minimum distance to be traveled.

Kidnapping in the second degree: a class B violent felony

This is the less serious of the two degrees of kidnapping charges. According to article §135.20, kidnapping in the second degree involves the abduction of an unwilling party. Kidnapping in the second degree is a class B violent felony.

If you are convicted of a class B violent felony offense, the sentence involves mandatory imprisonment of between 5 to 25 years. You might also have to pay a fine over $5000 if ordered by the court.

Kidnapping in the first degree: a class A-I felony

Kidnapping in the first degree is the more severe of the two degrees because it necessitates that the abducted person has undergone physical, sexual, or other substantial harm or terror at the hands of the offender. According to article § 130.25, if any of these conditions are met during the course of a kidnapping scenario, it qualifies as a first-degree offense:

The offender demands a ransom
The offender restrains the abducted person for a period of more than twelve hours with intent to
Inflict physical injury upon him or violate or abuse them sexually; or
Accomplish or advance the commission of a felony; or
Terrorize them or a third person; or
Interfere with the performance of a governmental or political function
The abducted person dies during the abduction before they are returned to safety. Special consideration is made if the deceased person is a minor or otherwise debilitated.

Kidnapping in the first degree is a class A-I felony. A class A-I felony carries a penalty of mandatory imprisonment of a minimum period between 15 to 25 years, or even a life sentence. Just as with a conviction for second-degree kidnapping, you can be fined over $5000 by the court in addition to imprisonment.

Important Cases That Define Kidnapping

People v. Levy

The definition of kidnapping in New York State has been outlined because kidnapping can take many forms. In this case, People v. Levy, 15 N.Y.2d 159 (N.Y. 1965), the defendant was involved in an armed robbery offense which included acts that fall under the definition of kidnapping, but he was not convicted of kidnapping, only robbery.

The defendant was convicted of robbery because, although his crime included an act of kidnapping, the kidnapping was only a means by which to facilitate the robbery. In other words, the abduction was “merely incidental” to the intended crime of robbery.

This case is important because it overruled a previously established case like People v. Hope and People v. Florio, in which the defendants were convicted separately of both kidnapping and another crime which had necessitated the act of kidnapping. This development limits the application of kidnapping charges to scenarios in which kidnapping is the primary offense.

People v. Jing Xiong

In People v. Jing Xiong, 38 A.D.3d 926 (2007), 832 N.Y.S.2d 646, the defendant was convicted of custodial interference in the second degree. Jing Xiong Kelly intentionally violated the conditions of a custody agreement by taking her child to the native country of China. She was arrested upon trying to return to North America.

Despite the defendant’s appeals, the court found that, because the child faced no immediate danger with their legal guardian in the United States, the defendant was not justified in violating the custody agreement.

This case involves one of the lesser known types of kidnapping: parental abduction. It also shows that the court is willing to prosecute, not only strangers who commit the crime of kidnapping, but family members, friends, and acquaintances as well.

People v. Small

In People v. Small, 249 App. Div. 863, 274 N.Y. 551., the victim, was held at gunpoint and forced into the backseat of a car. He called out for assistance, and the defendants were arrested almost immediately as they attempted to escape. The event lasted less than two minutes but still, a conviction on kidnapping charges was obtained.

This case is significant because it demonstrates that the statute does not specify any length of time during which the victim must be detained to be considered kidnapping. In other words, an offense that fits the definition of kidnapping is sufficient to constitute a crime, regardless of the length of time of the offense.

Possible defenses to a kidnapping charge

The charge of kidnapping rests on the condition that a person was either (A) seized and contained against their will, or that a person was (B) unable to knowingly and fully consent to seize or containment depending on age and/or capacity and taken against the will of their legal guardian. Given this basis, an effective defense against kidnapping is to prove that either:

You are a familial relative of the kidnapped person, AND your sole intention was to exert custodial control of that person, as opposed to causing harm (See Penal Law § 135.30) or
The kidnapped individual, if lawfully capable of consenting, remained in your custody knowingly and willingly during the period in question or
The offender suffered from some form of mental disease, incapacity or defect

Who investigates Kidnapping in New York State?

Generally, the Bureau of Criminal Investigation (BCI) investigates felonious and violent crimes, including kidnapping. In addition to conducting investigations initiated by the New York State Police, the Bureau of Criminal Investigation’s investigators assist county law enforcement agencies when necessary.

What should additional considerations be made if you are facing a kidnapping charge?

There are special circumstances that can alter the manner in which a kidnapping case is investigated. For instance, transporting a kidnapped person across state lines constitutes a federal offense, and can preclude the involvement of the Federal Bureau of Investigation.

Federal prosecutors can choose to file separate kidnapping charges for interstate offenses, and you can be prosecuted on both the state and federal levels.

Why you need a lawyer if you’re facing kidnapping charges

If you are charged with kidnapping, or even learn you are being investigated for possible participation in a conspiracy, seek legal assistance immediately.

Kidnapping charges are very serious. What’s worse, kidnapping is a complex crime that encompasses a broad range of offenses, and you will need a legal team that understands the intricacies of the charges you’re facing.

Depending upon the degree of kidnapping with which you are charged, you could face years of imprisonment – even a life sentence. The offense of kidnapping is multifaceted. It requires lawyers knowledgeable about:

The degrees of kidnapping;
How kidnapping is investigated; and
How investigators may question you during an interrogation surrounding a kidnapping case

Advantage of having a Lawyer

Lawyers can assist you in making statements during the investigation. Choosing the right defense is imperative to tackling the situation properly from the onset of an investigation.

Kidnapping charges can arise from poor decisions, misunderstandings, miscommunications, and more. You will need legal counsel that has defended others charged with kidnapping to defend you. Your legal counsel will be able to:

Analyze your specific situation to determine if you have been properly charged with the offense or the degree of kidnapping;
Develop the best possible defense to the charges, based on their experience in other cases and their understanding of your particular situation;
Advocate forcefully on your behalf in all aspects of your defense.

Related crimes: New York Penal Law § 135.00

Some of the crimes closely relating to kidnapping under Article 135 include:

Unlawful imprisonment in the second degree: New York Penal Law § 135.05
Unlawful imprisonment in the first degree: New York Penal Law § 135.10
Labor trafficking: New York Penal Law § 135.35
Labor trafficking; accomplice: New York Penal Law § 135.36
Aggravated labor trafficking: New York Penal Law § 135.37
Custodial interference in the second degree: New York Penal Law § 135.45
Custodial interference in the first degree: New York Penal Law § 135.50
Coercion in the third degree: New York Penal Law § 135.60
Coercion in the second degree: New York Penal Law § 135.61
Coercion in the first degree: New York Penal Law § 135.65

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