In re Rashaun S.

McGuire, J. (dissenting).

I agree with Justice Kavanagh that the evidence was legally insufficient to establish the restraint element of the unlawful imprisonment charge and, with one exception, join in his opinion. I note, too, that one can easily conceive of a myriad of situations in which children or teenagers might grab the arm or leg of another child or teenager and pull him or her a short distance for a similarly brief period of time for some playful or obnoxious reason. Provided only that the “victim” did not consent to the “restraint,” the majority’s view of the restraint element compels the conclusion that the crime of unlawful imprisonment has been committed in these situations. The exception is that I respectfully disagree both with Justice Kavanagh and the majority with respect to the sufficiency of the evidence to support the menacing charge. In my opinion, even assuming a rational trier of fact could conclude that the victim was in fact placed “in fear of. . . imminent. . . physical injury” (Penal Law § 120.15), no rational trier of fact could conclude that appellant had the requisite mens rea—the intent, i.e., the “conscious objective” (Penal Law § 15.05 [1])— of causing the victim to be placed “in fear of. . . imminent. . . physical injury” (Penal Law § 120.15).