The First Department, in a full-fledged opinion by Justice Saxe, determined defendants were properly convicted of kidnapping and, under the facts, unlawful imprisonment was not a lesser included offense. The defendants taped the victim’s wrists behind his back, taped his arms to his body, and then transported the victim by car from New York to Philadelphia, where the victim was released at night in a deserted area:
We reject defendants’ argument that a car on a public thoroughfare may not, as a matter of law, be considered “a place where [the victim] is not likely to be found” [within the meaning of the kidnapping statute] (Penal Law § 135.00 [2]). …
Defendants suggest that a car may only be treated as a place where the victim is “not likely to be found” if (1) the defendant used or threatened to use a weapon to put or keep the victim in the vehicle, (2) the defendant used the vehicle to take the victim to a secluded place, or (3) the victim was not visible to the public within the car. However, neither Penal Law § 135.00(2) nor any case law imposes such requirements of proof. …
Unlawful imprisonment does not qualify here as a lesser included offense of the kidnapping charge, because there was no reasonable view of the evidence that defendants unlawfully imprisoned [the victim] but did not kidnap him. People v Grohoske, 2017 NY Slip Op 00617, 1st Dept 1-31-17
CRIMINAL LAW (A MOVING CAR IS A PLACE WHERE THE VICTIM IS NOT LIKELY TO BE FOUND WITHIN THE MEANING OF THE KIDNAPPING STATUTE, UNDER THE FACTS, UNLAWFUL IMPRISONMENT WAS NOT A LESSER INCLUDED OFFENSE)/KIDNAPPING (A MOVING CAR IS A PLACE WHERE THE VICTIM IS NOT LIKELY TO BE FOUND WITHIN THE MEANING OF THE KIDNAPPING STATUTE, UNDER THE FACTS, UNLAWFUL IMPRISONMENT WAS NOT A LESSER INCLUDED OFFENSE)/UNLAWFUL IMPRISONMENT (A MOVING CAR IS A PLACE WHERE THE VICTIM IS NOT LIKELY TO BE FOUND WITHIN THE MEANING OF THE KIDNAPPING STATUTE, UNDER THE FACTS, UNLAWFUL IMPRISONMENT WAS NOT A LESSER INCLUDED OFFENSE)