Second Circuit: Second-Degree Kidnapping Under New York Penal Law § 135.20 Not Categorically a Crime of Violence
by Douglas Ankney
The U.S. Court of Appeals for the Second Circuit held that kidnapping in the second degree under New York Penal Law (“NYPL”) § 135.20 is not categorically a crime of violence pursuant to 18 U.S.C. § 924(c)(3)(A).
In June 2021, the Second Circuit affirmed the judgment against Thamud Eldridge that included a conviction for kidnapping in aid of racketeering in violation of 18 U.S.C. § 1959(a)(1) predicated on kidnapping in the second degree under NYPL § 135.20 (Count 5); a conviction for attempted Hobbs Act robbery or conspiracy to commit Hobbs Act robbery (Count 6); and a conviction for possessing and brandishing a firearm in the furtherance of a crime of violence in violation of § 924(c)(1)(A)(ii) (Count 7). The jury verdict did not specify whether the Count 5 conviction or the Count 6 conviction was the underlying crime of violence supporting the Count 7 conviction. Eldridge had argued that it did not matter because none of his convictions qualified as a crime of violence. The U.S. Supreme Court vacated the judgment and remanded to the Second Circuit for further consideration in light of United States v. Taylor, 142 S. Ct. 2015 (2022).
On remand, the Second Circuit observed that, in light of Taylor, attempted Hobbs Act robbery does not qualify as a crime of violence. Additionally, conspiracy to commit Hobbs Act robbery is not a crime of violence. United States v. Davis, 139 S. Ct. 2319 (2019).
With regard to a conviction for second-degree kidnapping under NYPL § 135.20, the Court employed the modified categorical approach in determining it is not a crime of violence. Under the modified categorical approach, the Court first looks to the charging papers or other documents in the record to determine the underlying crime that the defendant was charged with committing. Gray v. United States, 980 F.3d 264 (2d Cir. 2020). The Court next identifies the minimum criminal conduct necessary for a conviction under that particular statute. United States v. Hill, 890 F.3d 51 (2d Cir. 2018). The Court looks only to the elements of the offense as defined in the statute and not to the facts of the particular defendant’s case. Id. The Court then considers whether the minimum criminal conduct necessary to violate the statute amounts to a crime of violence defined by § 924(c)(3)(A) as any felony that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”
The Court observed that under NYPL § 135.20, a defendant is guilty of second-degree kidnapping when he or she “abducts another person.” Under New York law, “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.” NYPL § 135.00(2). And under NYPL 135.00(1), “restrain” is defined as: “To restrict a person’s movements intentionally and unlawfully in such a 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 the 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....”
Based upon the above definitions, the Court concluded that a defendant could be convicted of second-degree kidnapping under NYPL § 135.20 if he or she used deception to hold a victim in a place where it was unlikely the victim would be found. Since deception does not require “the use, attempted use, or threatened use of physical force,” as defined under § 924(c)(3)(A), NYPL § 135.20 is not categorically a crime of violence. Thus, the Court ruled that none of Eldridge’s convictions qualify as a predicate crime of violence to support a conviction under § 924(c)(1)(A).
Accordingly, the Court vacated his conviction on Count 7, remanded to the U.S. District Court for the Western District of New York for resentencing on all of Eldridge’s remaining convictions, and affirmed its earlier ruling in all other respects. See: United States v. Eldridge, 63 F.4th 962 (2d Cir. 2023).
