The opinion
Lawton, J. (dissenting).
I respectfully dissent. The majority, in interpreting Penal Law § 135.30, places too much emphasis on the status of the adoptive parents vis-a-vis those of defendant, the biological mother, in discerning the intent of the statute. This is not a case that concerns the relative rights of biological and adoptive parents. There is no question that the status of the adoptive parents in this case is in all respects superior to that of defendant. Here, we are concerned solely with the rights of defendant in this criminal prosecution. In article 135 of the Penal Law, custodial interference is distinguished from kidnapping and regarded as a less serious crime because of the likelihood that a relative who assumes control of a child would be favorably disposed toward the child (see, Model Penal Code and Commentaries § 212.4, at 252-253). Defendant, who acted to be reunited with her biological son, clearly was favorably disposed toward him, as even the majority acknowledges. Therefore, the evils sought to be addressed by the kidnapping statute are not present. Sufficient evidence was submitted to the Grand Jury to establish that the sole purpose *15 of defendant was to assume control of her child. Thus, County Court properly determined that the Grand Jury proceedings were defective because the prosecutor failed to instruct the Grand Jury on the affirmative defense to kidnapping set forth in Penal Law § 135.30 (see generally, People v Valles, 62 NY2d 36, 38-39 ). Accordingly, I would affirm.
Pine, J. P., and Hayes, J., concur with Scudder, J.; Lawton, J., dissents and votes to affirm in a separate opinion.
Order reversed, on the law, motion denied, count one of the indictment reinstated and matter remitted to Erie County Court for further proceedings on the indictment.