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PEOPLE v. BROWN

264 A.D.2d 12 (2000)

702 N.Y.S.2d 739

THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. DIANNA BROWN, Respondent.

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

February 16, 2000.

Attorney(s) appearing for the Case

Frank J. Clark, District Attorney of Erie County, Buffalo (J. Michael Marion of counsel), for appellant.

Kristin Marie Preve, Buffalo, for respondent.

PINE, J. P., and HAYES, J., concur with SCUDDER, J.; LAWTON, J., dissents and votes to affirm in a separate opinion.

OPINION OF THE COURT

SCUDDER, J.

The issue before us in this case of first impression is whether defendant, the biological mother of an adopted child, charged with, inter alia, kidnapping in the second degree (Penal Law § 135.20), is a relative of that child pursuant to Penal Law § 135.00 (3) and therefore entitled to the affirmative defense set forth in Penal Law § 135.30. We conclude that defendant is not a relative of the child within...

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