| People v Antonio |
| 2009 NY Slip Op 00242 [58 AD3d 515] |
| January 20, 2009 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JoseAntonio, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Aaron Ginandes of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), entered June 13, 2006,convicting defendant, after a jury trial, of attempted kidnapping in the second degree andendangering the welfare of a child, and sentencing him to an aggregate term of 3½ years,unanimously affirmed.
Defendant encountered the complainant, an 11-year-old girl, in a restaurant. He offered topay for the girl's food, told her she was pretty and asked about her grades at school. The girlignored him and left the restaurant, but defendant followed her. Sensing his presence, she beganto run up the street calling for help, and defendant ran after her. The girl ran, screaming, towardsan adult bystander, who grabbed her protectively and, at the same time, attempted to ward offdefendant. Undeterred, defendant went behind the bystander and grabbed at the girl's hand. Thebystander asked defendant if he was the girl's father, and he falsely claimed that he was. When apolice car passed by, defendant fled the scene.
The evidence was legally sufficient. To obtain a conviction for attempted kidnapping in thesecond degree, the People are required to establish that defendant intended to "abduct" thecomplainant (Penal Law § 135.20). "Abduct" is defined as "restrain[ing] a person withintent to prevent [her] liberation by . . . secreting or holding [her] in a place where[she] is not likely to be found." (Penal Law § 135.00 [2] [a].)
The jury could reasonably have inferred from defendant's actions that he attempted to abductthe child. By telling the man who was trying to protect the girl that he, defendant, was the girl'sfather, defendant evinced his desire to gain control over the girl. By reaching out for the girl'shand, he demonstrated his intention to restrain her. And, because he knew that the girl not onlydid not welcome his advances, but had run from him and screamed for help, it was notunreasonable for the jury to conclude that whatever defendant intended to do with the girl onceshe was restrained would not be done in public (see People v Cassano, 254 AD2d 92[1998], lv denied 92 NY2d 1029 [1998]).[*2]
We also find that the verdict was not against the weightof the evidence. Concur—Mazzarelli, J.P., Friedman, Nardelli, Buckley and Freedman, JJ.