New York Criminal Lawyer Blog
Unlawful Imprisonment in the First (NY Penal Law 135.10) and Second (NY Penal Law 135.05) Degrees:
False imprisonment is the unlawful restraint of a person against her will by someone without legal authority or justification. For example, an armed bank robber yells at the customers to get down on the floor, threatening to shoot them if they try to leave. Since they know they might be killed if they try to leave, they are being held against their will. The captive bank customers may be able to claim damages, and the bank robber may be charged with the crime of false imprisonment. Even the police may be charged with false imprisonment if they exceed their authority such as detaining someone without justification.
It often takes the trained criminal eye of a New York criminal defense attorney or lawyer to locate and assess the nuances between similar statutes. Deciphering the language between similar statutes could mean the difference between facing a misdemeanor or a violent felony. One example of this found in statutes relating to Kidnapping and Unlawful Imprisonment. Although each of these statutes have their own unique language, at a basic level the difference between Kidnapping (NY Penal Law 135.20 and 125.25) and Unlawful Imprisonment (NY Penal Law 135.05 and 135.10) hinges on two key words defined by statute and interpreted by case law. Those key words are “restrain” and “abduct.” Today’s entry will address the general definitions applicable to Kidnapping and Unlawful Imprisonment. Additionally, I will give an overview of the crimes of Unlawful Imprisonment in the First and Second Degrees. At a later date I will analyze the Kidnapping statute under New York State law.
False imprisonment can come in many forms, including any threat or use of authority that confines you against your will. While physical force is often used, it is not required. Moreover, the restraint of a person may be imposed by physical barriers (such as being locked in a car) or by unreasonable duress (such as holding someone “within the bounds of a fixed area” over a long period of time).
A person claiming false imprisonment must have reasonably believed that he was being confined. A court will determine whether his belief was reasonable by determining what would a reasonable prudent person under similar circumstances would do or believe.
In addition, the person doing the confinement must have intended to confine, and not have the privilege to do so, such as shopkeepers who are permissibly investigating shoplifting at a store or civilians who have witnessed a felony.
135.00 Unlawful Imprisonment, Kidnapping and Custodial Interference; definitions of terms: 1. “Restrain” means to restrict a person’s movements intentionally and unlawfully in such manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent and with knowledge that the restriction is unlawful. A person is so moved or confined “without consent” when such is accomplished by (a) physical force, intimidation or deception, or (b) any means whatever, including acquiescence of the victim, if he is a child less than sixteen years old or an incompetent person and the parent, guardian or other person or institution having lawful control or custody of him has not acquiesced in the movement or confinement. 2. “Abduct” means 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. 3. “Relative” means a parent, ancestor, brother, sister, uncle or aunt.
Under the New York Criminal Penal Law, Unlawful Imprisonment in the Second Degree is committed when a person who restrains another person. Unlawful Imprisonment in the Second Degree is a class A misdemeanor punishable by up to one year in jail.
A person is guilty of Unlawful Imprisonment in the First Degree when he restrains another person under circumstances which expose the latter to a risk of serious physical injury. Unlawful Imprisonment in the First Degree is a class E felony punishable by up to four years in prison.
Unlike the differences between Kidnapping and Unlawful Imprisonment, the differences between Unlawful Imprisonment in the First and Second Degrees stems from the former requiring that the victim be exposed to a risk of serious physical injury. To make matters slight more complicated, serious physical injury has its own definition. Although I will not address that definition in this blog entry, it is important to understand that disfigurement or protracted loss of health falls in this definition. Therefore, if a victim was subject to a black eye or possible cuts and bruises, then the serious physical injury element would not be satisfied.
Kidnapping is a serious crime, if your loved one has been charged of the said crime, you will need the help of a New York Criminal Attorney and New York Order of Protection Attorney at Stephen Bilkis and Associates.