Can You Be Charged with a Crime for Kidnapping in New York?

Introduction

Kidnapping. The very word strikes fear into the hearts of parents everywhere. The idea of a loved one, especially a child, being taken against their will is the stuff of nightmares. But what exactly constitutes kidnapping under New York law? Can a parent be charged with kidnapping their own child? What are the penalties if you are convicted?At Spodek Law Group, we understand the complexities of New York's kidnapping laws. Our experienced criminal defense attorneys have defended many clients against kidnapping charges. We know what it takes to build a strong defense and protect your rights. In this article, we'll break down the kidnapping laws in New York and explain what you need to know if you or a loved one is facing these serious criminal charges.

What is Kidnapping Under New York Law?

Under New York Penal Law, a person is guilty of kidnapping when he or she "abducts another person." But what does it mean to "abduct" someone? The law defines "abduct" to mean "to restrain a person with intent to prevent his liberation by either:a. secreting or holding him in a place where he is not likely to be found, or b. using or threatening to use deadly physical force."Let's break that down. To be guilty of kidnapping, a person must:

1. Restrain another person, and
2. Intend to prevent that person's liberation, either by
   • Hiding the person in a place they won't likely be found, or
   • Using or threatening deadly force

So kidnapping requires both a physical act (restraint) and a mental state (the intent to prevent liberation). It's not enough to simply restrain someone momentarily. There must be an intent to prevent the person from leaving.

Degrees of Kidnapping Charges

New York law recognizes two degrees of kidnapping: first degree and second degree. Here's how they differ:

Kidnapping in the Second Degree

A person is guilty of kidnapping in the second degree when he abducts another person. This is the basic kidnapping charge and a class B felony. If convicted, a person faces up to 25 years in state prison.

Kidnapping in the First Degree

Kidnapping in the first degree is a more serious charge. A person is guilty of this crime when he abducts another person and when:

• His intent is to compel a third person to pay or deliver money or property as ransom, or to engage in other particular conduct, or to refrain from engaging in particular conduct; or
• He restrains the person abducted for a period of more than twelve hours with intent to:
  • Inflict physical injury upon him or violate or abuse him sexually; or
  • Accomplish or advance the commission of a felony; or
  • Terrorize him or a third person; or
  • Interfere with the performance of a governmental or political function; or
• The person abducted dies during the abduction or before he is able to return or to be returned to safety.

As you can see, first degree kidnapping requires additional aggravating factors beyond just the abduction itself. Using the abduction to seek ransom, restraining the victim for over 12 hours to commit other crimes, or if the victim dies, can all raise the charge to first degree kidnapping. This is a class A-I felony, the most serious felony classification below murder. If convicted, a person faces a minimum of 15-25 years and a maximum of life in prison.

Can a Parent Be Charged With Kidnapping Their Own Child?

Many people are surprised to learn that a parent can be charged with kidnapping their own child. But it's true. If a parent takes, detains, or conceals a child from the other parent in violation of a custody order, they can face kidnapping charges.This often comes up in contentious divorce or custody battles. One parent, fearing they will lose custody, takes the child without permission. They may flee to another state or country. Even though it's their child, this is still illegal.New York has a specific law dealing with parental kidnapping, called "custodial interference." A person is guilty when:

• Being a relative of a child less than sixteen years old, and intending to hold such child permanently or for a protracted period, and knowing that he has no legal right to do so, he takes or entices such child from his lawful custodian; or
• Knowing that he has no legal right to do so, he takes or entices from lawful custody any incompetent person or other person entrusted by authority of law to the custody of another person or institution.

So if a parent takes their child in violation of a custody order, intending to keep the child permanently or for an extended time, they can be charged with custodial interference. This is a class E felony, punishable by up to 4 years in prison.It's important to note that a parent cannot be charged with kidnapping their own child if there is no custody order in place. Absent a court order, both parents have equal rights to their children. It only becomes kidnapping when a parent violates a custody order.

Defenses to Kidnapping Charges

If you or a loved one is facing kidnapping charges, it's crucial that you speak with an experienced criminal defense attorney right away. These are serious charges with severe penalties. But there may be defenses available, depending on the circumstances. Some common defenses include:

• Consent: It's not kidnapping if the alleged victim consented to go with the defendant. This defense often comes up in cases involving two adults, where one claims the encounter was consensual.
• Lack of Intent: As noted above, kidnapping requires a specific intent to prevent the victim's liberation. If that intent is lacking, it's not kidnapping. For example, if a person restrains someone momentarily in the heat of an argument, without intending to actually prevent them from leaving, that would not be kidnapping.
• Mistake of Fact: A defendant may argue that they mistakenly believed they had a right to take the alleged victim. For example, in a parental kidnapping case, a parent may have mistakenly believed they had legal custody.
• Necessity: In rare cases, a defendant may argue that the kidnapping was necessary to prevent a greater harm. For example, if a defendant took a child to protect them from abuse.

The applicability of any defense depends heavily on the specific facts of the case. That's why it's so important to have an attorney review your case and advise you of your options.

What to Do If You Are Charged With Kidnapping

If you are charged with kidnapping, the first thing you should do is exercise your right to remain silent. Do not speak to the police or anyone else about your case until you have consulted with an attorney. Anything you say can and will be used against you.Your next step should be to contact an experienced criminal defense attorney. Look for an attorney who has specific experience handling kidnapping cases. At Spodek Law Group, our attorneys have decades of experience defending clients against even the most serious criminal charges. We know what it takes to win.Your attorney will review the evidence against you and advise you of your options. They will work to get your bail reduced so you can be released from custody while your case is pending. They will also start investigating your case and building your defense.In many cases, it may be possible to get the charges reduced or dismissed entirely. Your attorney will negotiate with the prosecutor on your behalf. If a plea bargain is in your best interest, your attorney will work to get you the best deal possible.If your case does go to trial, your attorney will be by your side every step of the way, fighting for your rights and your freedom. We have a proven track record of success in even the toughest cases.

Conclusion

Kidnapping is a serious crime with severe penalties. If you or a loved one is facing these charges, it's normal to feel scared and overwhelmed. But you don't have to face this alone.At Spodek Law Group, we are here for you. Our experienced attorneys will work tirelessly to defend your rights and protect your freedom. We understand what's at stake, and we will do everything in our power to get you the best possible outcome.Don't wait. Contact us today at 212-300-5196 for a free and confidential consultation. Let us put our experience to work for you. Remember, if you are charged with kidnapping:

1. Exercise your right to remain silent
2. Contact an experienced criminal defense attorney immediately
3. Let your attorney guide you through the process and build your defense

You have rights. We will fight to protect them. Call Spodek Law Group today. N.Y. Penal Law § 135.20  N.Y. Penal Law § 135.00  N.Y. Penal Law § 135.20  N.Y. Penal Law § 135.25  N.Y. Penal Law § 135.45