A Glimpse of Smiley Defense
By Herbert Lowe, Staff Writer
Originally published in Newsday, May 20, 2002
Giving a glimpse of their defense, lawyers for Barry and Judith Smiley will try to convince a judge tomorrow that the couple should be charged with custodial interference, not the 1980 kidnapping of a toddler they wanted to adopt.
Steven Brill, who represents Judith Smiley, said the couple was in a custody battle with the boy's biological parents and cannot be charged with kidnapping.
"If the facts of our case rise to the level of establishing any crime, it is custodial interference," the lawyers argued in a motion that also seeks to have second-degree kidnapping charges dismissed.
Barry, 57, and Judith Smiley, 55, are accused of abducting the boy in 1980 and raising him as their own after a Family Court judge in Queens ordered him returned to his biological parents. The Smileys raised the boy as Matthew Propp in New Mexico after assuming the names Bennett and Mary Propp for themselves.
State Supreme Court Acting Justice Joseph Grosso refused the defense attorneys' request to dismiss the more severe charge in December. The attorneys did not formally seek the custodial interference charge until recently.
Custodial interference carries a maximum 4-year prison sentence on conviction. Kidnapping can result in a sentence of 20 years.
The Smileys, who are each free on $25,000 bail, must appear in Kew Gardens for trial June 4.
The boy, now 23 and a hospital security guard, still lives in New Mexico with the Smileys.
The motion asserts that for the first 14 months of the boy's life, the Smileys served as his parents while his biological father sought his return after the biological mother had put him up for adoption.
Under state law, the motion says, relatives should not be charged with kidnapping when a child is taken, especially in custody battles, without evil or malicious intent. Assistant District Attorney Eric Rosenbaum declined to comment on the motion and has yet to file a response with the court.
Grosso has presided over the case since the Smileys surrendered last year on a 1980 arrest warrant. Defense attorneys have worked since then to reach a plea deal involving no jail time.
The biological father, Anthony Russini, 42, of Westbury has said he never wanted the boy put up for adoption and has yet to bond with his son as he had hoped. He is adamant that the Smileys go on trial.
