| Matter of Rashaun S. |
| 2007 NY Slip Op 10066 [46 AD3d 412] |
| December 20, 2007 |
| Appellate Division, First Department |
| In the Matter of Rashaun S., a Person Alleged to be a JuvenileDelinquent, Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York City (Julie Steiner of counsel), forpresentment agency.
Order of disposition, Family Court, New York County (Mary E. Bednar, J.), entered on orabout June 26, 2006, which adjudicated appellant a juvenile delinquent, upon a fact-findingdetermination that he committed acts, which, if committed by an adult, would constitute thecrimes of unlawful imprisonment in the second degree and menacing in the third degree, andplaced him on probation for a period of one year, affirmed, without costs.
The court's finding was based on legally sufficient evidence and was not against the weightof the evidence. There is no basis for disturbing the court's determinations concerning credibility(see People v Bleakley, 69 NY2d 490, 495 [1987]). Appellant and another youth grabbedthe victim's leg and prevented him from leaving a school bathroom as he tried to crawl towardthe door in an effort to escape. Appellant continued to pull on the victim's leg while the otheryouth touched the victim's pants in the genital area and engaged in other offensive behavior. Thisconduct constituted restraint (see Penal Law § 135.00 [1]; Matter of Darryl W., 24 AD3d 134[2005]), and also placed the victim in fear of his safety. The evidence does not supportappellant's assertion that this behavior was just a childish prank. We also note that the evidenceestablished that appellant was accessorially liable for the acts of his companion (seePenal Law § 20.00). Concur—Nardelli, J.P., Gonzalez and Sweeny, JJ. Kavanaghand McGuire, JJ., dissent in separate memoranda, as follows:
Kavanagh, J. (dissenting in part). Because I do not believe that appellant's actions, evenviewed in their worst light, measure up to the crime of unlawful imprisonment in the seconddegree, I must respectfully dissent.
Both appellant and the victim were, at the time of the incident, 11-year-old students attendingfifth grade at the same elementary school. According to the victim, at approximately [*2]2:00 p.m. on January 9, 2006, he left his classroom to use thebathroom located 5 to 10 feet down the hall. As he was about to wash his hands, appellant andJamel S., another fifth grade student attending the same school, entered the bathroom. Jamelstated, "Yeah, [you're] in the bathroom all by [your]self." Believing that something was about tohappen, the victim ran inside a nearby stall and closed the door, but was unable to lock it. Jamelopened the door and grabbed the victim by his shirt. As Jamel was pulling him from the stall, thevictim slipped on some water and fell to the floor. Jamel then said "let's go duck [the victim's]head in the toilet." The victim at that point was turned over on his stomach and was crawlingtoward the bathroom door. Jamel grabbed one of the victim's legs and appellant grabbed theother, and both began to pull the victim toward the urinal. At that point, Jamel flipped the victimonto his back, grabbed the victim's penis over his clothes and began making "huffing noises."The victim then hit appellant and Jamel's hands and knocked them off of his legs, pulling himselffrom their grasp. He then got up and ran out of the bathroom. According to the victim, the entireepisode happened within one minute.
Appellant's testimony cast the entire episode in a different light. Appellant acknowledgespushing the victim after he bumped into appellant. Appellant also admits pulling on the victim'sleg, but says he did so in order to open the bathroom door to leave the bathroom. However, boththe victim and appellant's testimony are consistent to the extent that they state that whathappened in the bathroom involved a minimum of physical contact, which took place over a verybrief period of time. Neither makes the case that what transpired constituted a substantialinterference with the victim's movements because he was not transferred against his will toanother place or confined to that location for any meaningful period of time.
Even considering the evidence as to what occurred in the bathroom in a light most favorableto the presentment agency (see Matter ofCarlique P., 42 AD3d 367 [2007]; Matter of Marie K., 19 AD3d 149 [2005]), it simply failed toestablish a prima facie case of unlawful imprisonment. A person is guilty of unlawfulimprisonment in the second degree when "he restrains another person" (Penal Law §135.05). To restrain a person is "to restrict a person's movements intentionally and unlawfully insuch manner as to interfere substantially with his liberty by moving him from one placeto another, or by confining him either in the place where the restriction commences. . . without consent and with knowledge that the restriction is unlawful. A person isso moved or confined 'without consent' when such is accomplished by . . . physicalforce, intimidation or deception" (Penal Law § 135.00 [1] [emphasis added]).
The acts of appellant and Jamel, while obnoxious and immature, amount to nothing morethan horseplay among fifth graders and do not constitute a substantial interference with thevictim's liberty interest. It involved a minimal amount of physical contact which constituted nomore than a shove which may have caused the victim to fall, and a pull on the victim's leg whilehe was on the bathroom floor. These contacts over such a brief period of time simply did notmeasure up to a substantial interference with the victim's freedom of movement—instead itwas a schoolyard-type confrontation which lasted for a very brief moment in time and is not thesort of conduct which this statute was enacted to criminalize (compare People v Peters, 1 AD3d 270 [2003], lv denied 1NY3d 632 [2004] [an assailant's actions in binding his victims' mouths, hands and feet with tape,placing a plastic bag over a victim's head, and placing the other victim inside a cardboard boxconstituted a restraint ]; compare Matterof Darryl W., 24 AD3d 134 [2005] [defendant's physical restraint preventing his victimfrom leaving a classroom]). While I agree that appellant's behavior cannot be condoned, it doesnot measure up to contacts of so significant [*3]a duration orimpact as to constitute an unlawful restraint.[FN*]
While I reluctantly agree with the majority that the charge of menacing in the third degreehas been established by the credible evidence presented below, I am convinced that this entireepisode was nothing more than an obnoxious prank perpetrated by two 11-year-old children in aschoolyard-type setting. A full-scale prosecution for juvenile delinquency in Family Court and allthat such action entails strikes me as being totally out of proportion with what actually occurred. Isimply cannot believe that the interest of justice would not have been better served by having theentire matter addressed within the school system in an appropriate disciplinary proceeding.
McGuire, J. (dissenting). I agree with Justice Kavanagh that the evidence was legallyinsufficient to establish the restraint element of the unlawful imprisonment charge and, with oneexception, join in his opinion. I note, too, that one can easily conceive of a myriad of situations inwhich children or teenagers might grab the arm or leg of another child or teenager and pull himor her a short distance for a similarly brief period of time for some playful or obnoxious reason.Provided only that the "victim" did not consent to the "restraint," the majority's view of therestraint element compels the conclusion that the crime of unlawful imprisonment has beencommitted in these situations. The exception is that I respectfully disagree both with JusticeKavanagh and the majority with respect to the sufficiency of the evidence to support themenacing charge. In my opinion, even assuming a rational trier of fact could conclude that thevictim was in fact placed "in fear of . . . imminent . . . physical injury"(Penal Law § 120.15), no rational trier of fact could conclude that appellant had therequisite mens rea—the intent, i.e., the "conscious objective" (Penal Law § 15.05[1])—of causing the victim to be placed "in fear of . . . imminent. . . physical injury" (Penal Law § 120.15).
Footnote *: Moreover, had appellant raisedthe argument, we could have concluded that the unlawful imprisonment charge merged with themenacing conviction (see People v Peters, 1 AD3d at 271).