Advances to Girl Held Enough for Attempted Kidnapping

, New York Law Journal

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A divided state appeals panel has upheld the attempted kidnapping sentence of a previously convicted child molester who repeatedly made advances toward a 10-year-old girl and eventually tried to give her the keys to his apartment, which she refused.

The 3-2 Appellate Division, First Department, panel ruled in People v. Denson, 701/99, that the man, Raymond Denson, offered the keys to the girl in the hope that she would come willingly to his apartment where he could molest her, and that this constituted attempted kidnapping even though there was no evidence that the girl might have agreed.

The majority, comprised of Justices Angela Mazzarelli (See Profile), Sallie Manzanet-Daniels (See Profile) and Judith Gische (See Profile), said in an unsigned decision that although Denson did not harm the girl, he "came dangerously near to achieving his objective." Their ruling upheld a 10-year sentence imposed by former Manhattan Supreme Court Justice James Yates in 2002.

Justice David Saxe (See Profile) dissented, joined by Richard Andrias (See Profile), saying that while Denson did endanger the welfare of the girl, his behavior did not amount to attempted kidnapping.

According to the opinion, Denson expressed interest in the girl in 1998, while he was working in a hardware store in the first floor of the building where she lived. Denson, then 54, had been convicted of a sex crime against his stepdaughter more than 20 years earlier.

Denson knew that the girl walked home from school alone and was alone in her apartment until her mother returned from work. He repeatedly approached her and asked her to have ice cream, go ice skating and go to the movies.

One day he came to her apartment uninvited and asked her to go out with him. Eventually, he tried to give her the keys to his apartment and said she could go there while her mother wasn't home. This frightened the girl, and her mother called the police soon after, prompting Denson's arrest and charges.

At the non-jury trial, even the defense expert conceded that Denson had been found by mental health professionals to be a "pedophile," that he was "highly fixated" on the girl, had "eroticized thoughts" about her, tried to "forge an adult-type relationship with her" and was "in pursuit" of her. Yates also heard testimony about Denson's previous sex crime before convicting and imposing the sentence.

On appeal, the majority found no reason to disturb the conviction.

"Defendant's entire course of conduct toward the victim mirrored his conduct toward his stepdaughter, whom he had molested years earlier," the majority wrote.

The majority found no problem with admitting testimony about Denson's earlier sex crime, concluding that the testimony was not used to establish a "propensity"—which would make it inadmissible—but to show that Denson had "transferred" his fixation on his stepdaughter to his new victim.

"Under the unusual circumstances of this case, the court properly exercised its discretion in receiving testimony regarding defendant's prior conviction of a sex crime committed against a child, as well as its underlying facts, on the issue of intent," the majority wrote.

Saxe, in the dissent, agreed that Denson's conviction for endangering the welfare of the child should be upheld, but said the conviction for attempted kidnapping should have been thrown out. He said that, in effect, Denson was being punished for being a convicted sex offender, not for anything he actually did.

"Even a convicted sexual predator like defendant—one who committed a sex crime against his young stepdaughter more than 20 years ago—is entitled to protection from an overcharged prosecution arising from accusations that defendant had begun to focus his attention on another young girl," Saxe said.

The prosecution, he said, failed to offer enough evidence that Denson intended to kidnap the girl.

"Rather, it relies primarily on what amounts to propensity evidence, essentially reasoning that based on defendant's prior act of molesting a child, we can expect that he would do it again," Saxe said. "The only valid inference that may be made from the facts adduced at trial, namely, that defendant had hoped to have the opportunity to sexually molest the complainant, is not sufficient to establish all the elements of an attempted kidnapping."

Rather than try to control the child in some way, Saxe said, Denson merely hoped that she would "cooperate with his delusional plans."

"There is reason to be concerned that his desires and delusions could ultimately lead him to actually engage in conduct amounting to kidnapping," he said. "However, the conduct demonstrated at trial falls short of an attempted kidnapping as the statute and the cases define it."

The majority, responding to the dissent, said that a child under 16 does not have to be forcibly restrained to be kidnapped. Kidnapping for of a child "encompasses movement or confinement by 'any means whatever,' including the acquiescence of the child," the majority said, quoting Penal Law §135.00[1][b].

"In relaxing the requirement with respect to minors, the Legislature recognized that a child is not possessed of the same faculties as an adult and is incapable of consenting to any type of confinement," it said.

"We are disappointed with the affirmance and are investigating next steps," said Kerry Jamieson, a senior staff attorney at the Office of the Appellate Defender, who represented Denson.

The prosecution was represented by Manhattan Assistant District Attorney Martin Foncello. The office could not be reached for comment.

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