Unlawful Imprisonment: NY Penal Law 135.05 and 135.10

Should you find yourself prosecuted for Unlawful Imprisonment in New York – either Penal Law section 135.05 or 135.10 – your criminal defense lawyer or team will no doubt explain the legal process, the differences between the degrees of this crime and what he or she believes is your best defense to limit the direct and collateral consequences of your arrest. However, without the right counsel and advocacy, know that what started out as “only” a misdemeanor or felony allegation can lead to an indelible criminal record and conviction that leaves you incarcerated for the foreseeable future.

Whether you are charged with Unlawful Imprisonment in the First or Second Degree in the Domestic Violence context or not, there is a critical element that each offense shares. This element is in the term “restrain.” “Restrain,” according to Penal Law 135.00(1), generally means to intentionally and illegally restrict a person's movement. This restraint must substantially interfere with that person's liberty by either confinement or moving from one place to another. With this definition in mind, each of the two offenses may share this common piece, but also have important distinctions.

Second Degree Unlawful Imprisonment: Penal Law 135.05

To secure a conviction for the base level or misdemeanor Second Degree offense, Penal Law 135.05, you must restrain another person. A class “A” misdemeanor, this offense is punishable by up to one year in jail. If you are arrested in New York City, Queens, Brooklyn, Manhattan or the Bronx, this one year would be spent on Rikers Island, one of the most notorious jails in the United States. That said, the Westchester County, Putnam County, Dutchess County and Rockland County jails are not far behind.

First Degree Unlawful Imprisonment: Penal Law 135.10

The First Degree crime is perpetrated when you restrain another person and during the occurrence of that restraint you also subject the other person to a risk of “serious physical injury.” Just as with any crime involving “serious physical injury,” the District Attorney must prove beyond a reasonable doubt that you exposed this other person to an impairment of health, disfigurement or even death.

Unlawful Imprisonment in the First Degree is a class "E" felony punishable by up to four years in prison.

There is a very tight rope to walk between Unlawful Imprisonment and Kidnapping in New York. While the county police in Rockland or Westchester may charge you with one crime over the other or First Degree Unlawful Imprisonment when the applicable charge, if true, should involve an arrest for Second Degree Unlawful Imprisonment, one thing holds true - irrespective of which degree of the crime you find yourself investigated for or charged with and regardless of whether you are in an NYC Criminal Court or a Justice Court in the Hudson Valley, this is a terrifying offense to face.

While a cliché example and something you often see in a movie, tying someone up to a chair or holding a door shut while a person is in a closet may run afoul of the lesser offense while the felony “version” is likely committed if when doing so you left the person in a precarious location where he or she could fall to her death or even drown in a pool.

While not the same as either Custodial Interference or Kidnapping, these crimes can sometimes be confused with one another. While convictions can all have variations of the same ramifications including incarceration, loss of licensure and certifications, and revocation of a legal status associated with immigration, Orders of Protections and Restraining Orders are also common place.

If you find yourself immersed in a prosecution for either of these laws, make sure you recognize the significance of what you face and the potential defenses including that codified in Penal Law 130.15. Although not exclusive of any other strategy, if the person being restrained is fifteen years old or younger, a relative of the accused, and the purpose of the act was to assume control of the child, then in this limited scenario an affirmative defense would exist.

A criminal offense associated with significant wrongdoing, and rightfully so, before your career, livelihood or future is jeopardized by incarceration or a permanent record, contact the criminal lawyers at Saland Law so your best defense is firmly rooted in experience, knowledge and advocacy.

Call the criminal defense attorneys and former Manhattan prosecutors at (212) 312-7129 or contact us online today to discuss your case and possible defenses.