Attempted Kidnapping Charge Supported by Sufficient Evidence/Defendant Tried to Convince the 10-Year-Old Victim to Take His Keys and Go to His Apartment

The First Department, over a dissent, determined there was sufficient evidence to support the attempted kidnapping charge, in spite of the absence of force. The defendant tried to convince the 10-year-old victim to take his keys and go to his apartment:

The crime of attempted kidnapping in the second degree was established by evidence that defendant intended to secrete or hold the 10-year-old victim in his apartment, a place where she was not likely to be found; that he made efforts to move or confine the victim without consent (see Penal Law §§ 135.00; 135.20); and that defendant came dangerously near to achieving his objective.The evidence left no doubt that the victim was unlikely to be found had she succumbed to defendant’s pressure to take his keys and go to the apartment. Similarly, 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 the permission of her mother.The dissent, in arguing that the crime was not established because defendant did not grab or unsuccessfully attempt to grab the victim, misconstrues the statutory requirement of restraint. While, with respect to an adult, it is necessary to establish that the movement or confinement was accomplished by “force, intimidation or deception,” the definition of restraint, with respect 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]). In relaxing the requirement with respect to minors, the Legislature recognized that a child is not possessed of the same faculties as an adult and is incapable of consenting to any type of confinement. People v Denson, 2014 NY Slip Op 01141, 1st Dept 2-18-14