In the past, people attempted to avoid kidnapping charges by trading or substituting one child for another. Although this wasn’t illegal in the past, one can see how this is still morally wrong and an attempt at deception. For that reason, the state of New York enacted New York Penal Law § 135.55, which made it illegal to substitute children. While the nature of this law may seem obvious, it may be beneficial to gain a deeper meaning of the conditions that define this law.
Defining New York Penal Law § 135.55: Substitution of Children
In general terms, substituting children is a form of kidnapping, which is why it’s grouped with other kidnapping laws in the New York Penal Code. While it involves switching one child with another, there are three conditions that must be met in order to prove a charge of substitution of children.
The first condition is that the child must have been placed in another individual’s custody for a temporary period of time. Additionally, as the individual took custody of the child, he or she must have intended to deceive the child’s parents or legal permanent guardians. Finally, the individual must return another child in place of that child.
As these conditions suggest, there are circumstances in which children may be accidentally substituted. This is why the law specifies that the individual must have the intent to deprive the legal guardian of their rightful child. If intent can’t be established, New York Penal Law § 135.55 will not apply.
Defending Against a Substitution of Children Charge
Suppose Jessica is picking up a group of children from their day camp and delivering each child back home. In this scenario, it is possible to leave the wrong child off at a different family’s residence. Since Jessica never intended to deceive the families involved, she could not be charged with the crime of substituting children.
However, suppose Kimberly gives birth to a child with birth defects at the same time her neighbor, Mary, gives birth to a healthy child. Mary asks Kimberly to watch her child, while she runs some errands. If Kimberly gives Mary her own child with the intent of keeping the healthier baby for herself, her intent to deceive may be proven. In this case, Kimberly may be charged with violating New York Penal Law § 135.55.
Defending against a charge of substitution of children is extremely difficult, since the charge will not be filed unless the prosecutor feels confident that he can prove intent. Conversely, the best defense is being able to prove the opposite to be true. If the defendant can offer evidence to support the idea that the substitution was accidental, it may be possible to get an acquittal or the charges may be dropped.
In New York, substitution of children is classified as a class E felony. This means a conviction can result in five years of probation up to four years of imprisonment. In determining how to sentence the defendant, a judge will look at the facts of the case and the defendant’s criminal history. Someone with no previous convictions may receive probation. Conversely, an individual who has repeatedly made similar attempts to kidnap or switch children will most likely receive the harshest possible sentence. In addition to probation or prison time, the judge may also require that a fine is paid. The fine may be up to $5,000.
If you are charged with violating New York Penal Law § 135.55, it may be in your best interests to hire an attorney. A criminal defense lawyer with experience in handling kidnapping cases will know how best to defend you. Even if he can’t get your charges dropped or obtain an acquittal, your defense lawyer may still be able to work out a more favorable outcome. The seriousness of this type of offense requires that you take advantage of an attorney’s expertise to help you get the best possible result in your case.
