New York Kidnapping charges can best be divided into two categories. First, the act of abduction. Second, the act of keeping someone somewhere against their will. Although in your mind these New York kidnapping charges can be one and the same, they can actually be broken up into (1) Kidnapping and (2) Unlawful Imprisonment.
There are two degrees of Kidnapping in New York:
- Kidnapping in the First Degree
- Kidnapping in the Second Degree
Similarly, there are two degrees of Unlawful Imprisonment in New York:
- Unlawful Imprisonment in the First Degree; AND
- Unlawful Imprisonment in the Second Degree.
The differences in these charges is explained below.
New York Kidnapping Charges Explained
In very basic terms, Kidnapping is the unlawful abduction of another person. New York Kidnapping charges are taken very seriously and are among the highest level felonies in New York State.
Kidnapping in the Second Degree
Under New York Penal Law Section 135.20, a person is guilty of Kidnapping in the Second Degree when s/he abducts another person.
What is the Legal Definition for Abduction?
The legal definition of “abduct” means to restrain a person with intent to prevent his liberation by either:
- Secreting or holding him in a place where he is not likely to be found, OR
- Using or threatening to use deadly physical force.
Penalties and Sentences for Kidnapping in the Second Degree
Kidnapping in the Second Degree is a Class B felony. As such, this charge is punishable by 5 to 25 years in prison.
Kidnapping in the First Degree
New York Kidnapping in the First Degree is a more serious charge than Kidnapping in the Second Degree. The difference in these charges is that New York Kidnapping in the First Degree contains additional aggravating elements, that Kidnapping in the Second Degree does not.
Elements of Kidnapping in the First Degree
Under New York Penal Law 135.25, a person is guilty of Kidnapping in the First Degree when s/he abducts another person AND:
- Does so with the intent to compel someone to pay or deliver money or property as ransom or to engage in particular conduct; OR
- Restrains the person abducted for a period of more than 12 hours AND does so with intent to
- Cause physical injury or abuse sexually;
- Accomplish or advance the commission of a felony;
- Terrorize him or a third person;
- Interfere with performance of a governmental or political function; OR
- Person abducted dies during abduction or before return to safety.
When is Someone Presumed Dead for New York Kidnapping in the First Degree?
Sometimes, in kidnapping or homicide cases, the body is not found, yet the case proceeds to trial. Frequently, kidnapping or homicide cases without a corpse result in convictions.
For the purposes of New York Kidnapping in the First Degree, a person’s death is presumed when:
- A person is either incompetent or under 16 years old at the time of the abduction and the parents or legal guardians do not hear from the abducted person from the end of the abduction and prior to trial. Importantly, for this presumption to apply to New York kidnapping charges, no reliable information can be received by the family to indicate that the person is alive.
- In all other cases, when there is no communication or visit from the person abducted in the same manner and frequency for a certain period as when the person was alive and free. Similarly to incompetent individuals and those under 16, for this presumption to apply to this New York kidnapping charge, no reliable and persuasive information must be received indicating that the person is alive.
Penalties and Sentencing Kidnapping in the First Degree
Kidnapping in the First Degree is a class A-I felony, which is the most serious level felony in New York State. As such, the minimum for this New York Kidnapping charge is 15 to 25 years in prison. The maximum sentence for Kidnapping in the First Degree is life-imprisonment.
Common Defenses to New York Kidnapping Charges
Some common defenses to New York Kidnapping charges involve duress, coercion, or a familial relationship to the victim.
Duress/Coercion
Duress is a legal defense that involves someone committing a crime only because they were threatened with imminent physical harm to themselves or another person. In order for duress to be an effective legal defense, it must be established that a reasonable person in the same situation would have also committed the crime when faced with the same threat.
Familial Relationship
There is a familial relationship affirmative defense to New York kidnapping charges, which can be found in New York Penal Law Section 135.30. Under Penal Law Section 135.30, it is an affirmative defense that
(a) The defendant was a relative of the person abducted, AND
(b) The Defendant’s sole purpose was to assume control of such person.
If both these elements are established, then the burden shifts to the prosecution to disprove this affirmative defense beyond a reasonable doubt.
New York Unlawful Imprisonment Charges Explained
Similarly to New York kidnapping charges, there also are two different crimes of New York Unlawful Imprisonment – Unlawful Imprisonment in the First Degree and Unlawful Imprisonment in the Second Degree. The difference in these charges is explained below.
New York Unlawful Imprisonment in the Second Degree
Under New York Penal Law Section 135.05, a person is guilty of Unlawful Imprisonment in the Second Degree when s/he restrains another person.
What is the definition “restrain” for NY Unlawful Imprisonment Charge?
The legal definition of the word “restrain” comes from New York Penal Law Section 135.00(1), and encompasses the following conduct:
- Intentional and unlawful restriction of the person’s movements by moving him from one place to another; OR
- Confinement of the person in a place without consent and with knowledge that such restriction is unlawful.
The term “without consent” is further defined as being accomplished by (a) physical force, intimidation, or deception, OR (b) any means whatever, including acquiescence of the victim, if s/he under sixteen years old or an incompetent person.
Penalties and Sentencing for New York Unlawful Imprisonment in the Second Degree
Unlawful Imprisonment in the Second Degree is a Class A misdemeanor. As such, this charge is punishable by up to 1 year in prison. Practically speaking, misdemeanor charges, especially for someone with a limited or non-existent criminal record, do not involve jail time. Rather, these types of cases are resolved with probation, conditional discharge, unconditional discharge, time served, or community services.
New York Unlawful Imprisonment in the First Degree
New York Unlawful Imprisonment in the First Degree is a more serious charge than New York Unlawful Imprisonment in the Second Degree. Under New York Penal Law Section 135.10, a person is guilty of Unlawful Imprisonment in the First Degree when he restrains another person under circumstances which expose the latter to the risk of serious physical injury.
Penalties and Sentencing for New York Unlawful Imprisonment in the First Degree
New York Unlawful Imprisonment in the First Degree is a Class E Non-Violent Felony. As such, this particular charge is punishable by up to 1 1/3 to 4 years in prison. However, for this particular charge probation, conditional discharge, unconditional discharge or a determinate sentence of less than 1 year are also possible sentences.
Common Defenses to New York Unlawful Imprisonment Charges
Similarly to the defenses to New York kidnapping charges discussed above, the affirmative defense of being the relative of the unlawfully imprisoned individual applies, so long as the following elements are satisfied:
- The person restrained was a child less than sixteen years old, AND
- The defendant was a relative of such child, AND
- His sole purpose was to assume control of such child.
If the defense is able to satisfy all the elements of this affirmative defense, then at trial, the burden shifts to the prosecution to disprove the affirmative defense beyond a reasonable doubt. Practically speaking, that is a very high standard for the prosecutor to overcome.
Is Kidnapping a Federal or a State Criminal Charge?
Kidnapping is usually prosecuted under state criminal laws, but it can also be charged as a federal crime. In order for kidnapping to be charged under federal law, the kidnapping must cross state lines. Federal prosecutors can bring criminal charges against someone, even if that person is already charged with kidnapping on the state level. That means an individual can be charged for the same conduct under both New York State and federal law.
Federal Kidnapping – 18 U.S.C. Section 1201
The federal kidnapping statute is codified in 18 U.S.C. Section 1201.
A person can be charged with federal kidnapping under 18 U.S.C. Section 1201, if s/he unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward any person. However, one of these additional elements must be present in order for someone to be prosecuted for kidnapping under federal law:
- Victim was transported across state lines;
- Defendant traveled across state lines in furtherance of the kidnapping;
- Defendant used mail or interstate commerce in furtherance of the kidnapping;
- Victim was kidnapped from a federal territory, maritime or aircraft jurisdiction of the United States;
- Victim was a foreign official, internationally protected person or an official guest;
- Victim was a federal employee or officer.
Importantly, federal kidnapping charges usually are not brought against parents for abducting their minor children, except for the crime of international parental kidnapping.
Federal Kidnapping for Ransom – 18 U.S.C. Section 1202
Another federal kidnapping charge is codified in 18 U.S.C. Section 1202. Under this statute, it is a federal crime to knowingly receive, possess, or dispose money or property that was ransom for a kidnapping.
Contact Top Rated NY Kidnapping Criminal Defense Attorneys
If you or a loved one have been arrested or are under investigation for an unlawful imprisonment or a kidnapping charge in New York, you should begin the process of interviewing attorneys as soon as possible. Please call us at 212-729-9494 or contact us today for your free initial consultation.