This opinion is uncorrected and subject to revision before

publication in the New York Reports.

-----------------------------------------------------------------

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

- 1 -
- 2 - No. 130

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. 

- 2 -
- 3 - No. 130

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

- 3 -
- 4 - No. 130

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

- 4 -
- 5 - No. 130

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

- 5 -
- 6 - No. 130

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

- 6 -
- 7 - No. 130

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

- 7 -
- 8 - No. 130

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

- 8 -
- 9 - No. 130

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.). 

- 9 -
- 10 - No. 130

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. 

- 10 -
- 11 - No. 130

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

- 11 -
- 12 - No. 130

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

- 12 -
- 13 - No. 130

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

- 13 -
- 14 - No. 130

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

- 14 -
- 15 - No. 130

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

- 15 -
- 16 - No. 130

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

- 16 -
- 17 - No. 130

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

- 17 -
- 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.

- 18 -
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

- 1 -
- 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-yearold 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

- 2 -
- 3 - No. 130

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

- 3 -
- 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

- 4 -