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THE VICTIM IN THIS KIDNAPPING CASE ASKED THE DEFENDANT IF SHE COULD GO WITH HIM TO FLORIDA; THE JURY SHOULD HAVE BEEN INSTRUCTED THAT THE INTENT TO VIOLATE OR ABUSE THE VICTIM MUST HAVE EXISTED FOR MORE THAN 12 HOURS, A NEW TRIAL WAS ORDERED ON THAT GROUND; BOTH THE CONCURRENCE AND THE DISSENT ARGUED THERE HAD BEEN NO RESTRAINT WITHIN THE MEANING OF THE KIDNAPPING STATUTE (FOURTH DEPT).

The Fourth Department, over a concurrence and a dissent, determined the jury instruction on the intent element of kidnapping was wrong requiring reversal. Defendant, who was over 21, drove to Florida with the victim, who was 14, and had sex with her during the trip. The victim asked defendant if she could come with him and snuck out of the house without her mother’s knowledge. The concurrence argued the restraint element of kidnapping was not proven, but agreed with the majority because that element had been conceded by the defense. The dissent would have reversed and dismissed the indictment, finding the conviction was against the weight of the evidence:

… [T]he weight of the evidence supports a determination that defendant did not innocently acquiesce to the mere request of a 14-year-old acquaintance to drive her to Florida, but rather took advantage of a 14-year-old child’s age and inexperience, by driving the victim across multiple state lines, away from her family, in order to engage in an unlawful sexual relationship with a child. * * *

We interpret the statute to mean that kidnapping in the first degree requires that a defendant both restrain a victim for more than 12 hours and possess, for more than 12 hours during the period of restraint, the intent to violate or abuse the victim sexually. Here, however, the court instructed the jury that “intent does not require advanced planning, nor is it necessary that the intent be in the person’s mind for any particular period of time.” … [W]e conclude that the instruction was erroneous inasmuch as it permitted the jury to find that the element of intent pursuant to section 135.25 (2) (a) had been established even if the jury did not find that the intent existed for more than 12 hours during a period of over 12 hours of restraint.  * * *

FROM THE DISSENT: Under these circumstances, it cannot be said that defendant either “secreted” or “held” the victim in his car, or that he intended to prevent her “liberation.” She was there voluntarily and of her own accord, which is the very antithesis of being “secreted” or “held” somewhere. People v Vail, 2019 NY Slip Op 05848, Fourth Dept 7-31-19

 

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