The People v.Raymond Denson

This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 130
The People &c,.
            Respondent,
        v.
Raymond Denson,
            Appellant.




          Kerry S. Jamieson, for appellant.
          Christopher P. Marinelli, for respondent.




FAHEY, J.:
          Defendant was convicted after a nonjury trial of, inter
alia, attempted kidnapping in the second degree.   On this appeal,
we are asked to decide, among other issues, whether the trial
court erred in admitting evidence of defendant's prior conviction
of a sex crime committed against a child, as relevant to his

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intent in the current offense.    Defendant also challenges the
legal sufficiency of the People's evidence.       We hold that the
trial court did not err in admitting evidence of defendant's
prior conviction.    We further hold that the evidence is legally
sufficient to sustain the conviction of attempted kidnapping in
the second degree.
                                  I.
            The victim of the offense was a 10-year-old girl who
lived with her mother in an apartment located above the hardware
store where defendant worked.    The evidence at trial established
that defendant often exchanged greetings with the victim and her
mother as they entered or exited the building.       When the victim
began junior high school in 1998, her mother allowed her to walk
alone to and from the school, which was close to their apartment
building.    During this time, defendant frequently approached the
victim as she walked home from school, and he repeatedly offered
to take her out for ice cream, or to take her ice skating or to
the movies.    The victim felt "bothered" by defendant's conduct
and rejected his requests.    The victim estimated that defendant
made offers to take her out between 30 and 40 times.
            On August 29, 1998, when the victim was standing
outside the hardware store while her mother was trying to hail a
taxi, defendant approached them.       The victim and her mother
testified that defendant said that the victim was upset with him
because he had not taken her ice skating or to the movies.


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Defendant then stated that he wanted to take the victim to see a
film.
            On September 6, 1998, the victim heard a knock at the
door to her apartment.    Her mother was in the shower.    She saw no
one at the door when she looked through the peephole, but when
she opened the door slightly, defendant was standing there.         The
victim testified that defendant was "dressed up" in a red,
"crushed velvet or felt" outfit with red shoes, a "beret hat and
a black shirt."    He asked the victim whether she was ready to go
to the movies.    The victim said that she was not.    Defendant
asked her if she was busy that week, and the victim said that she
was.    She then closed the door.   This incident took place on a
Sunday, when the hardware store was closed.     Furthermore, a
buzzer access system prevented unauthorized entry to the
apartment building, and defendant had not buzzed the victim's
apartment to gain entry.
            On September 11, 1998, the victim came home from school
alone as usual, entered the apartment building, and began walking
up the stairs.    She then saw defendant exiting a door to the
basement, which the hardware store used for storage.      The victim
said "hello" to defendant.    Defendant, who was standing two to
three feet away from the victim, said, "Here's the keys to my
apartment," and he began to take the chain holding his keys from
around his neck.    The victim refused to take the keys, and
defendant asked her three times if she was sure.      When she


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repeated her refusals, defendant told her to meet him downstairs
later that day if she changed her mind and promised he would get
her some ice cream.   The victim ran upstairs to her mother’s
apartment, feeling frightened.    Later that day, she told her
mother what had happened, and her mother contacted the police.     A
grand jury subsequently indicted defendant on charges of
attempted kidnapping in the second degree (Penal Law §§ 110.00,
135.20) and endangering the welfare of a child (§ 260.10 [1]).
          Before trial, the People sought to introduce evidence
of defendant's 1978 sodomy conviction (see former Penal Law §
130.50), arising from his sexual abuse of his stepdaughter, as
evidence of his intent with respect to the charge of attempted
kidnapping in the second degree.    Defendant opposed the People's
application.   The court held a lengthy Ventimiglia hearing (see
People v Ventimiglia, 

52 NY2d 350, 361-362

 [1981]), during which
it heard the testimony of an expert who testified on behalf of
the People, as well as an expert who testified on behalf of
defendant.   After the hearing, the trial court held that the
evidence of defendant's prior conviction was admissible to prove
defendant's intent.
          During the ensuing nonjury trial, the victim and her
mother testified with respect to the foregoing facts leading to
defendant's arrest.   Defendant's estranged wife and her niece
testified regarding defendant's sexual abuse of his stepdaughter.
Defendant's estranged wife testified that defendant frequently


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took his stepdaughter on outings in which he would dress up in a
"dress suit" with a fur "round rim hat," and he would require his
stepdaughter to dress up as well.      The same expert witnesses who
testified at the Ventimiglia hearing also provided testimony at
trial.
            The court found defendant guilty as charged.   A divided
Appellate Division affirmed (People v Denson, 

114 AD3d 543

 [1st
Dept 2014]), and one of the dissenting Justices granted defendant
leave to appeal to this Court.    We now affirm.
                                 II.
            Defendant contends that the trial court erred in
allowing the People to introduce evidence of his 1978 sodomy
conviction as evidence of his intent in the present offense.       We
disagree.
            "[T]he familiar Molineux rule states that evidence of a
defendant's uncharged crimes or prior misconduct is not
admissible if it cannot logically be connected to some specific
material issue in the case, and tends only to demonstrate the
defendant's propensity to commit the crime charged" (People v
Cass, 

18 NY3d 553, 559

 [2012]).    Where, however, "the proffered
Molineux evidence is relevant to some material fact in the case,
other than the defendant's propensity to commit the crime
charged, it is not to be excluded merely because it shows that
the defendant had committed other crimes" (id. at 560).     Although
it is not an exhaustive list, evidence of a defendant's prior bad


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acts may be admitted to prove the crime charged when the evidence
tends to establish:
          "(1) motive; (2) intent; (3) the absence of
          mistake or accident; (4) a common scheme or
          plan embracing the commission of two or more
          crimes so related to each other that proof of
          one tends to establish the others; and (5)
          the identity of the person charged with the
          commission of the crime on trial" (id.,
          citing People v Molineux, 

168 NY 264, 293

          [1901]).
          Here, the People asserted that defendant's prior
conviction was relevant to establish his intent with respect to
the charge of attempted kidnapping in the second degree.   In
assessing whether evidence of a defendant's prior criminal acts
should be admitted at trial, a trial court is required to engage
in a two-step analysis.   First, the trial court must determine
whether the People have "identif[ied] some material issue, other
than the defendant's criminal propensity, to which the evidence
is directly relevant" (Cass, 

18 NY3d at 560

).   If the People have
met that burden, the trial court must then "weigh the evidence's
probative value against its potential for undue prejudice to the
defendant" (id.; see People v Alvino, 

71 NY2d 233, 242

 [1987]).
"If the evidence has substantial probative value and is directly
relevant to the purpose -- other than to show criminal propensity
-- for which it is offered, the probative value of the evidence
outweighs the danger of prejudice and the court may admit the
evidence" (Cass, 

18 NY3d at 560

).
          Inasmuch as defendant was charged with attempted


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kidnapping in the second degree, the People were required to
prove that he intended to "abduct" the victim, i.e., that he
intended to prevent the victim's liberation "by either (a)
secreting or holding [her] in a place where [she was] not likely
to be found, or (b) using or threatening to use deadly physical
force" (Penal Law §§ 135.00 [2]; 135.20).   The People proceeded
on the theory that defendant intended to prevent the victim's
liberation by secreting or holding her in a place where she was
not likely to be found (see § 135.00 [2] [a]).   Thus, the only
portion of Penal Law § 135.00 (2) that applies here is subsection
(a).
          During the Ventimiglia hearing, the People's expert
witness testified that defendant's behavior toward the victim in
this case closely resembled his pattern of behavior toward his
stepdaughter.   The fact that defendant had frequently taken his
stepdaughter out on "dates" akin to the outings defendant
proposed to the victim here suggested to the People's expert that
defendant had groomed his stepdaughter for sexual abuse and that
defendant viewed his relationship with his stepdaughter as
similar to an appropriate romantic relationship with an adult.
The People's expert opined that defendant was reliving his
relationship with his stepdaughter through his behavior toward
the victim in this case, and that defendant's behavior toward the
victim demonstrated that he was attempting to be alone with her
and to groom her for a sexual relationship.   The People's expert


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testified that defendant's prior offense was "critical" in
understanding his intent in the current offense.
          The People met their initial burden to demonstrate that
defendant's prior conviction was relevant to his intent.
Defendant's actions of attempting to give the victim the keys to
his apartment were equivocal, and this was therefore not a case
where defendant's intent could be easily inferred from his
conduct (see Alvino, 

71 NY2d at 242

).   Rather, the reason
defendant invited the victim to his apartment was important in
determining whether he had the requisite intent, i.e., whether he
intended to prevent the victim's liberation by secreting or
holding her there (see Penal Law § 135.00 [2] [a]).
          Where, as here, the People have demonstrated that they
wish to introduce the Molineux evidence for "a proper
nonpropensity purpose, the decision whether to admit evidence of
defendant's prior bad acts rests upon the trial court's
discretionary balancing of probative value and unfair prejudice"
(People v Dorm, 

12 NY3d 16, 19

 [2009]; see Cass, 

18 NY3d at 560

;
Alvino, 

71 NY2d at 242

).
          During the Ventimiglia hearing, defendant's expert
agreed that "repetition is a component featured to some
perpetrators," and that the features that suggest repetition with
respect to sex offenders were, among others, "similarity in
physical characteristics of victim type" and "similar predator
behaviors."   Defendant's expert further agreed that there were


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similarities between defendant's two victims, and that his
behavior demonstrated "some evidence of some ritualized aspect of
his functioning" and the "possibility of repetition."     She also
agreed with the People's expert that defendant displayed "high
fixation."
           Importantly, upon questioning by the court during the
Ventimiglia hearing about whether there were differences between
the repetitious behavior of some sex offenders and a lay person's
notion of propensity evidence, defendant's expert agreed that
there were "differences between simple propensity and repetition
per se."   Furthermore, when asked by the court whether one could
"draw an inference of intent from the theory of repetition,"
defendant's expert testified that one could infer "the
probability of what [defendant's] motivation is and the
probability of what his goals are" from the repetition of his
behavior in the two offenses.
           A trial court is "in the best position to evaluate the
evidence" when determining whether, in the court's discretion,
the probative value of the proferred Molineux evidence exceeds
the potential for prejudice to the defendant (People v Morris, 

21 NY3d 588, 597

 [2013]).   "[T]he trial court's decision to admit
the evidence may not be disturbed simply because a contrary
determination could have been made or would have been reasonable.
Rather, it must constitute an abuse of discretion as a matter of
law" (id.).


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          In its written decision and order, the trial court held
that the evidence presented by the People demonstrated "more than
criminal propensity, but . . . an actual link between the two
offenses."    The court noted that the victims of the two offenses
"so closely resemble[d] each other . . . as to be virtual twins,"
and that "[c]ertain distinctive patterns of behavior employed by
the Defendant on each occasion match to an extraordinary degree."
Moreover, the court concluded that the expert testimony at the
Ventimiglia hearing demonstrated that "[d]efendant was not merely
re-offending, but in fact suffered from a fixated fantasy" and
had "transferred his fixation and fantasy from victim number one
to victim number two and [was] now re-living the previous sexual
encounter."    Based on that expert testimony, the court concluded
that "the Defendant's fixation with the first victim is proof of
his intent with regard to the second."   The court stated that it
was aware of the potential for prejudice, but was "satisfied
that, with careful limitations and adequate caution to the jury,
some facts from the earlier case can be utilized to show a unique
connection between the two offenses" and that expert testimony
would help a jury "to understand what factors should be
considered, or discounted, in assessing those facts and that
connection."   Under the circumstances presented here, we cannot
say that the trial court abused its discretion as a matter of law
in admitting evidence of defendant's prior conviction.




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                                III.
           Defendant further contends that his conviction of
attempted kidnapping in the second degree is not supported by
legally sufficient evidence because the People failed to prove
that he had the requisite intent and that he came dangerously
near to completing the crime.    We disagree.
           A verdict is legally sufficient when, viewing the facts
in the light most favorable to the prosecution, " 'there is a
valid line of reasoning and permissible inferences from which a
rational jury could have found the elements of the crime proved
beyond a reasonable doubt' " (People v Danielson, 

9 NY3d 342, 349

[2007], quoting People v Acosta, 

80 NY2d 665, 672

 [1993]).     A
sufficiency review requires the Court to "marshal competent facts
most favorable to the People and determine whether, as a matter
of law, a jury could logically conclude that the People sustained
its burden of proof" (Danielson, 

9 NY3d at 349

).
           With respect to proof of defendant's intent, as noted,
the People were required to prove that defendant intended to
prevent the victim's liberation by secreting or holding her in a
place where she was not likely to be found (see Penal Law §§
135.00 [2] [a]; 135.20).   Defendant's intent may be inferred from
his actions and the surrounding circumstances (see People v
Bracey, 

41 NY2d 296

, 301 [1977], rearg denied 

41 NY2d 1010

[1977]).   This Court has recognized that "circumstantial evidence
of intent is often essential to prosecution for an attempted


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crime because . . . such evidence may be the only way of proving
intent in the typical case of criminal attempt" (People v Lamont,

25 NY3d 315, 319

 [2015] [internal quotation marks omitted]).
            The victim's mother testified that she did not know
defendant's name or where defendant's apartment was located until
after she contacted the police, and defendant does not dispute
that his apartment was a place where the victim was unlikely to
be found.    The remaining requirements to satisfy the intent
element may be inferred from defendant's conduct (see Bracey, 41
NY2d at 301).    Defendant engaged in increasingly bizarre and
frightening behavior toward the 10-year-old victim, culminating
in an invitation to his apartment, a nonpublic place.    Moreover,
defendant's prior conviction was probative of his intent in
inviting the victim to his apartment.    The People's expert opined
at trial that with his invitation, defendant was attempting to
isolate the victim in order to groom her for a sexual encounter.
Viewing the facts in the light most favorable to the People, we
conclude that there was a valid line of reasoning and permissible
inferences from which a reasonable factfinder could have
concluded that defendant had the requisite intent (see Danielson,

9 NY3d at 349

).
            With respect to defendant's contention concerning the
actus reus element of the crime, this Court has held that for a
defendant to be guilty of an attempted crime, the defendant "must
have engaged in conduct that came dangerously near commission of


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the completed crime" (People v Naradzay, 

11 NY3d 460, 466

 [2008]
[internal quotation marks omitted], rearg dismissed 

17 NY3d 840

[2011]).   The defendant's conduct "must have passed the stage of
mere intent or mere preparation to commit a crime[,]" but the
defendant need not have taken "the final step necessary" to
accomplish the crime in order to be guilty of an attempted crime
(People v Mahboubian, 

74 NY2d 174, 189-190

 [1989]; see Naradzay,

11 NY3d at 466

).
           The People were required to prove that defendant came
dangerously near to abducting the victim (see Penal Law §
135.20).   As we have acknowledged, the statutory definition of
"abduct" is complex (see People v Leonard, 

19 NY3d 323, 326-327

[2012]).   Penal Law § 135.00 (2) provides, as relevant here, that
to "abduct" means "to restrain a person with intent to prevent
his liberation by . . . secreting or holding him in a place where
he is not likely to be found."   Section 135.00 (1) in turn
provides that to "restrain" means
           "to restrict a person's movements
           intentionally and unlawfully in such a manner
           as to interfere substantially with [her]
           liberty by moving [her] from one place to
           another, or by confining [her] either in the
           place where the restriction commences or in a
           place to which [she] has been moved, without
           consent and with knowledge that the
           restriction is unlawful."
The statute further provides that a victim may be "so moved or
confined 'without consent' when such is accomplished by[,]" as
relevant here, "any means whatever, including acquiescence of the


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victim, if [she] is a child less than [16] years old . . . and
the parent, guardian or other person or institution having lawful
control or custody of [her] has not acquiesced in the movement or
confinement" (§ 135.00 [1] [b]).
           The victim's mother testified at trial that she did not
give defendant permission to take the victim anywhere.   Defendant
contends, however, that assuming he did not plan to accompany the
victim to his apartment, there were multiple steps she would have
had to take before she would have arrived there, such as learning
his address and obtaining transportation to his apartment.
Defendant therefore asserts that the People failed to prove that
he was dangerously near to completing the crime.   Defendant
further contends that he did not come dangerously close to
obtaining the victim's acquiescence because the evidence
demonstrated that she was "virtually impervious" to his repeated
invitations and would never have agreed to go to his apartment.
           These contentions amount to an assertion that where a
defendant attempts to kidnap a child through that child's
acquiescence (and not through the use of force, intimidation, or
deception), whether the defendant has come dangerously near to
accomplishing the crime is dependent upon the sophistication,
resistance, or other particular characteristics of the child
victim.   Our analysis with respect to whether a defendant has
come dangerously near to completing a crime, however, has focused
primarily on the conduct of the defendant, not his or her


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intended victim (see e.g. People v Clyde, 

18 NY3d 145, 155

[2011], cert denied ___ US ___, ___, 

132 S Ct 1921

 [2012]; People
v Cano, 

12 NY3d 876, 877

 [2009], rearg denied 

13 NY3d 766

 [2009];
Naradzay, 

11 NY3d at 467-468

; Mahboubian, 

74 NY2d at 191-192

).
The same principle applies here.   Thus, in determining whether
the People established by legally sufficient evidence that
defendant came dangerously near to completing the kidnapping, we
focus on the steps defendant took to accomplish the crime, rather
than on the actions or disposition of the particular child
victim, and whether defendant's conduct was "potentially and
immediately dangerous" (Mahboubian, 

74 NY2d at 191

).
           The People presented evidence that defendant repeatedly
tried to convince the victim to accompany him on various outings,
asking her 30 to 40 times as she walked home alone from school.
Defendant arrived at the victim's apartment unannounced and
uninvited and asked her if she was ready to go to the movies.     He
was dressed up for the occasion, and he somehow had circumvented
the buzzer system used to gain access to the apartments inside
the building.   Moreover, on that occasion, defendant showed up at
the victim's door on a Sunday, when the hardware store was
closed.   Five days later, defendant approached the victim while
she was alone in the stairwell of the building, came within two
or three feet of her, and attempted to give her the keys to his
apartment.   When she refused, he asked her three times if she was
sure, and then told her to meet him later if she changed her mind


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and that he would give her ice cream.   Viewing the evidence in
the light most favorable to the People, a rational factfinder
reasonably could conclude that defendant "crossed 'the boundary
where preparation ripens into punishable conduct' " (Naradzay, 

11 NY3d at 467

, quoting Mahboubian, 

74 NY2d at 190

).
          Defendant further contends that because the steps
remaining to accomplish the crime were within the control of the
victim, and not within his own control, the evidence is not
legally sufficient to establish an attempt.   Defendant relies on
cases where this Court noted that the conduct of the defendants
"had gone to the extent of placing it in their power to commit
the offense unless interrupted" (Mahboubian, 

74 NY2d at 191

[internal quotation marks omitted]; see Naradzay, 

11 NY3d at 467

;
Acosta, 

80 NY2d at 671

).   While that is a factor to consider in
determining whether a defendant has come dangerously near to
completing the crime, we have not held that for evidence of an
attempt to be legally sufficient, completion of the crime must be
solely within the power of the defendant.
          Indeed, under defendant's rationale, a defendant could
not be guilty of an attempted crime where it was impossible for
the defendant to complete the crime through actions within his or
her own power.   This is contrary to well-settled law (see Penal
Law § 110.10).   Applying defendant's rationale to an attempted
kidnapping where, as here, the defendant attempts to complete the
crime through the acquiescence of a child victim, a defendant


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could never be guilty of attempt because the crime could not be
completed without the acquiescence of the victim.    That is,
although the victim could not legally consent (see Penal Law §
135.00 [1] [b]), defendant argues, in essence, that the People
were required to prove that she would have consented in order to
show that defendant attempted to kidnap her.    We therefore reject
defendant's rationale.    Rather, under the circumstances of this
case, a rational factfinder could conclude that defendant had
moved beyond mere preparation to the point that his conduct was
potentially and immediately dangerous (see Naradzay, 

11 NY3d at 467

; Mahboubian, 

74 NY2d at 190-191

).    We therefore conclude that
the evidence is legally sufficient to establish defendant's guilt
of attempted kidnapping in the second degree.
                                  IV.
            Defendant's remaining contentions do not warrant
reversal.    Defendant was not charged with any other crime with
which the kidnapping charge could have merged, and therefore his
contention that his kidnapping conviction should be dismissed
pursuant to the merger doctrine is without merit (see People v
Rios, 

60 NY2d 764, 766

 [1983]).    Defendant's further contention
that the trial court should have granted his motion to suppress
statements he made to law enforcement involves mixed questions of
law and fact, and because there is record support for the
determinations made below, those determinations are beyond the
review power of this Court (see People v Cruz, 

90 NY2d 961

, 962


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                             - 18 -                       No. 130

[1997]; People v Harrison, 

82 NY2d 693, 694

 [1993]; People v
Nunez, 

80 NY2d 858, 860

 [1992]).
          Accordingly, the order of the Appellate Division should
be affirmed.




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People v Raymond Denson
No. 130




PIGOTT, J.(dissenting):
           Defendant here is in obvious need of psychological
help; but, under the circumstances of this case, he is not guilty
of attempted kidnaping in the second degree (Penal Law § 135.20).
           The incident that forms the basis of defendant's
attempted kidnaping conviction is laid out in the majority's
telling:   on September 11, 1998, after offering the victim keys
to his apartment and her refusal, he told her to meet him later
that day if she changed her mind and he would buy her some ice
cream - the latter being the same type of offer he had made to
her some 30 to 40 times previously.
           Tired of this conduct, her mother contacted the police.
Three days later, a detective contacted the defendant's employer
and advised him of mother's complaint.   Defendant's boss told the
detective he would send defendant to the precinct when he came to
work.   Defendant willingly went to the precinct and spoke with
police about the incidents.   As a result, he was charged with
endangering the welfare of a child (Penal Law § 260.10 [1]) and
harassment (Penal Law § 240.26 [3]).   The misdemeanor information
recited the facts as described in the majority's opinion.
           In October 1998, he was arraigned on those charges and


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                               - 2 -                          No. 130

pled not guilty, rejecting an offer to plead to the charges.
Later, in an undated indictment in 1999, defendant's harassment
charge became an attempted kidnaping in the second degree charge,
with no change in the underlying facts.    The only thing that had
changed was that the People learned that, some 20 years earlier,
defendant had been convicted of sexually abusing his eight-year-
old step-daughter.
          Prior to defendant's trial, the People made a
Ventimiglia/Molineux application to permit them to introduce
evidence of that prior sex conviction.    The Court initially
denied that application.   Having failed to prevail on their
original application, the People then made an in limine proffer,
this time including an expert affidavit.    The expert opined that
defendant, a convicted child molester, was "trying to relive his
sexual pattern" that he had engaged in with his step-daughter,
some 20 years earlier.   The court, acknowledging the highly
prejudicial value of this testimony, permitted the People's
introduction of this testimony to demonstrate that the instant
offense, as described by the expert, was "part of a fixation, a
repetitive pattern . . . that results not from merely
re-offending, but from actually re-living as a result of
transference."
          In my view, the court abused its discretion in allowing
in evidence of the prior conviction.   While, as the expert
suggested, it may have shown that defendant was a convicted child


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molester who was engaging in pattern behavior similar to that of
his prior sex conviction, it was not relevant in a case where no
sex crime was involved or charged.     Nor can it be relevant to
show that defendant intended to kidnap the child, as his prior
conviction did not include any kidnaping.
            Further, viewing the evidence in the light most
favorable to the People, they failed to establish an attempted
kidnaping beyond a reasonable doubt.     "A person is guilty of
kidnaping in the second degree when he abducts another person"
(Penal Law § 135.30).   As relevant here, "abduct", as defined by
Penal Law § 135.00 (2), "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. . .".     In turn,
restrain, means "to restrict a person's movements intentionally
and unlawfully in such 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 knowledge that the restriction is unlawful."
           "A person is guilty of an attempt to commit a crime
when, with intent to commit a crime, he engages in conduct which
tends to effect the commission of such crime" (Penal Law §
110.00).   Conduct does not rise to the level of attempt unless
the defendant's actions come "dangerously close" or "very near"
to accomplishing the intended crime (People v Naradzay, 11 NY3d


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                                  - 4 -                            No. 130

460, 466 [2008]; People v Mahboubian, 

74 NY2d 174, 190-91

[1989]).
            The People here were required to prove that defendant
came dangerously close to "abducting" the child.          A simple offer
of apartment keys clearly is not enough to show an intent to
restrain a child.
            In short, defendant offered the child his apartment
keys, she did not accept them and she walked away.         While
defendant clearly engaged in alarming behavior with this child
prior to and during this encounter, his actions, even viewing
them in a light most favorable to the People, did not come
"dangerously close" to an attempted kidnaping.        The result - we
had a person in need of psychological treatment in one of our
prisons without it.
            For these reasons, I dissent and would vote to reverse.
*   *   *     *   *   *   *   *    *      *   *   *   *    *   *     *   *
Order affirmed. Opinion by Judge Fahey. Chief Judge Lippman and
Judges Rivera, Abdus-Salaam and Stein concur. Judge Pigott
dissents in an opinion.

Decided October 27, 2015




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