Kidnapping Lawyer in New York

When Restraint Becomes Kidnapping Under New York Law

A kidnapping charge in New York requires more than an allegation that one person prevented another from leaving.

New York Penal Law distinguishes between restraint and abduction. Restraint involves intentionally and unlawfully interfering substantially with another person's freedom of movement without consent. Abduction requires something more: an intent to prevent the person's liberation either by hiding or holding that person somewhere they are unlikely to be found or by using or threatening deadly physical force.

Those definitions matter because kidnapping charges can arise from very different situations, including allegations involving physical force, threats, confinement, family disputes, or conduct connected to another alleged felony.

At Barket Epstein Kearon Aldea & LoTurco, LLP, our criminal defense team includes former prosecutors, former public defenders, and a former Nassau County Court judge. Our attorneys bring more than 200 years of combined experience and use a team-based approach to serious criminal cases in state and federal court.

Kidnapping in the Second Degree

New York Penal Law §135.20 defines Kidnapping in the Second Degree simply: a person is guilty when that person abducts another person.

The simplicity of that sentence can be misleading because the prosecution still has to establish the statutory definition of abduction.

That means examining whether the alleged conduct amounted to unlawful restraint and whether there is evidence of an intent to prevent the person's liberation through concealment or the use or threatened use of deadly physical force.

Kidnapping in the Second Degree is a Class B felony and is classified as a violent felony offense under New York law.

Because sentencing rules depend on the applicable version of New York's sentencing statutes, prior criminal history, and other circumstances, the felony classification alone should not be used to predict a sentence in an individual case.

Kidnapping in the First Degree Requires Additional Circumstances

Kidnapping in the First Degree under Penal Law §135.25 requires an abduction plus one of several aggravating circumstances.

The charge can apply when the prosecution alleges that the defendant abducted someone:

• With the intent to compel a third person to pay ransom, deliver property, take a specified action, or refrain from acting
• And restrained the abducted person for more than 12 hours with intent to cause physical injury, violate or abuse the person sexually, accomplish or advance another felony, terrorize a person, or interfere with a governmental or political function
• Or where the abducted person dies during the abduction or before being able to return or be returned to safety

First-degree kidnapping is a Class A-I felony. New York law provides a life maximum for Class A-I offenses, with the minimum period of imprisonment set under the applicable sentencing statute.

The difference between first and second degree therefore depends on much more than how serious the accusation sounds. The specific aggravating circumstance alleged by the prosecution must be identified and proved.

Consent, Restraint & What the Government Must Prove

Consent is important in a kidnapping case because restraint under Article 135 requires movement or confinement without consent.

That does not make “consent” a separate affirmative defense in every case. Instead, the prosecution may be unable to establish the restraint element if it cannot prove the movement or confinement occurred without the legally required consent.

For an adult capable of consenting, the statute recognizes lack of consent when movement or confinement is accomplished through physical force, intimidation, or deception.

Different rules apply to a child under 16 or an incompetent person. In those situations, the law also looks to whether the parent, guardian, or other person or institution with lawful custody acquiesced in the movement or confinement.

These distinctions can make communications, witness accounts, relationships between the parties, and the circumstances surrounding the alleged restraint significant pieces of evidence.

Family, Custody & New York's Relative Defense

Kidnapping allegations sometimes arise from family or custody disputes, but New York law does not treat every family-related taking the same way.

Penal Law §135.30 creates a specific affirmative defense to kidnapping when the defendant was a statutory relative of the person abducted and the defendant's sole purpose was to assume control of that person.

The word “sole” matters.

A family relationship by itself does not automatically eliminate kidnapping liability, and New York courts have recognized that even a custodial parent can potentially face kidnapping liability when the alleged conduct is sufficiently dangerous or harmful and inconsistent with lawful custody.

New York also has separate violent crime and related-offense laws addressing matters such as unlawful imprisonment and custodial interference.

Custodial Interference in the Second Degree, for example, can apply in specified circumstances when a relative takes or entices a child under 16 from a lawful custodian while knowing there is no legal right to do so. First-degree custodial interference adds separate aggravating circumstances.

Determining which offense actually fits requires examining the relationship, custody rights, purpose of the alleged taking, where the person was taken, and what occurred during the incident.

When a Kidnapping Charge Can Merge With Another Crime

New York has a judicially created kidnapping merger doctrine.

The doctrine addresses situations where conduct technically fitting the definition of kidnapping is so intertwined with another alleged offense that separate kidnapping liability may not fairly be appropriate.

This issue can arise, for example, when restraint or movement occurs during an alleged robbery, assault, rape, or another substantive crime.

Merger is not automatic.

New York courts examine whether the restraint or movement was minimal and essentially simultaneous with the other crime, whether the alleged kidnapping had an independent purpose or duration, and whether the manner of detention was itself sufficiently serious to support separate responsibility.

If the abduction is distinct from the underlying offense, the kidnapping charge may remain separate.

That makes the chronology of the incident important. How long the person was restrained, where movement occurred, what allegedly happened before and after the restraint, and whether the other offense could have occurred without that additional confinement can all become relevant.

Evidence That Can Decide a Kidnapping Case

Kidnapping cases are often fact-intensive.

Depending on the allegation, evidence may include:

• Text messages, calls, location data, or social media communications
• Surveillance or body-camera footage
• Witness accounts
• Statements made to police
• Vehicle or travel records
• Medical evidence
• Search-warrant materials
• Evidence concerning custody or family relationships
• Records showing where and for how long a person was allegedly confined

Identification can also be contested. In some cases, the dispute is not over whether a restraint occurred but who participated, what role a particular person played, or what that person intended.

The defense may also examine how statements were obtained, whether searches were lawful, whether identification procedures were reliable, and whether the evidence actually supports each element of the particular kidnapping charge.

What to Do During a Kidnapping Investigation

If police or investigators want to question you about an alleged kidnapping, you do not have to explain the facts of the case before speaking with counsel.

Statements made during an investigation may later become evidence.

Early representation allows an attorney to address questioning, evidence preservation, release issues, and the status of the investigation as soon as possible. It also gives counsel an opportunity to determine whether police are treating the person as a witness, subject, suspect, or defendant and what charges are actually being considered.

Avoid contacting the complainant or other witnesses about the allegations before discussing the situation with an attorney. Communications intended to “clear things up” can create additional factual or legal issues.

When Federal Kidnapping Law Can Apply

A kidnapping allegation does not have to involve only New York Penal Law.

18 U.S.C. §1201 creates a separate federal kidnapping offense.

Federal jurisdiction can arise when, among other circumstances, a victim is transported in interstate or foreign commerce, the alleged offender travels in interstate or foreign commerce, or mail or another facility or instrumentality of interstate or foreign commerce is used in committing or furthering the offense. Federal law also contains additional jurisdictional grounds involving federal territory, aircraft, and certain protected officials.

A completed federal kidnapping offense under §1201 can carry imprisonment for any term of years or life. Attempted federal kidnapping can carry up to 20 years.

Certain offenses involving victims under 18 can also carry a 20-year mandatory minimum when the statutory age and relationship requirements are satisfied.

Federal §1201 separately contains an exception involving the kidnapping of a minor by a parent, while international parental kidnapping is addressed under a different statute.

International Parental Kidnapping

18 U.S.C. §1204 addresses removing, attempting to remove, or retaining a child under 16 outside the United States with the intent to obstruct another person's lawful exercise of parental rights.

That offense can carry up to three years of federal imprisonment and has its own statutory affirmative defenses.

Our federal criminal defense practice represents clients facing investigations and charges in federal court.