Opinion
June 6, 1995
Appeal from the Family Court, Bronx County (Susan Larabee, J.).
The kidnapping in the first degree charge was not established beyond a reasonable doubt due to the insufficiency of the proof with regard to the "abduct" element of the crime, and respondent's motion to dismiss for legal insufficiency preserved this issue for our review. A person is guilty of kidnapping in the first degree when he abducts someone and restrains the person abducted for a period of more than 12 hours with intent to inflict physical injury upon her or violate or abuse her sexually (Penal Law § 135.25 [a]). Penal Law § 135.00 (2) defines "abduct" as "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." Here, there was no use or threat of deadly physical force. The display of a knife on the second day came well after the sequence of events began, and was an attempt to coerce the victim to have sex with another, not to restrain her for purposes of kidnapping.
The victim was not secreted or held in a place where she would not likely be found ( see, People v. Camp, 139 N.Y. 87, 91-93), and the authorities cited by the prosecution on this issue are inapposite. During the 48 hour episode, respondent and victim were constantly at the homes and in the presence of his relatives, none of whom was charged with a crime here. The victim was known to frequent the first location, the apartment where respondent lived with his grandmother, and in fact, her friend inquired about her there. As for the second location, the home of respondent's aunt, the victim remained there for several days after the respondent left. Nor did respondent's alleged threats to the victim and taking of her shoes, under these circumstances, amount to "secreting" or "holding" her in a place where she would not likely be found, as the statute requires.
Concur — Murphy, P.J., Rubin, Asch, Williams and Mazzarelli, JJ.