Guilty of Taking Baby
Smileys agree to plea deal for kidnapping of boy in 1980
By Herbert Lowe, Staff Writer
Originally published in Newsday, June 19, 2002
Ending a 23-year ordeal for two families, Barry and Judith Smiley pleaded guilty in Queens yesterday to kidnapping a 15-month-old boy they sought to adopt and raising him in New Mexico.
Under a plea agreement with prosecutors, Barry Smiley is expected to be sentenced to 2 to 6 years in prison for second-degree kidnapping. Judith Smiley also pleaded guilty to the same charge, but that conviction will be vacated during sentencing on July 30, at which time she is expected to get 6 months in jail and 4 1/2 years probation on a charge of custodial interference.
The child, Matthew Propp, now 23, watched restlessly as the couple he still steadfastly supports confessed to defying a 1980 Queens Family Court order to return him to his biological parents.
"Instead of obeying the law, we left the state," Barry Smiley, 56, told Justice Roger Rosengarten in a packed courtroom in State Supreme Court in Kew Gardens.
Sitting in a wheelchair beside her husband, Judith Smiley, 55, soon added: "We ultimately went to New Mexico where we set up a family."
Under questioning by Assistant District Attorney Eric Rosenbaum, the husband and wife also admitted to using false birth dates and Social Security numbers so they could live under the names Bennett and Mary Propp.
Rosengarten allowed the couple to both remain free on $25,000 bail so they could settle their affairs in Albuquerque before returning for sentencing.
In a media blitz beginning last week from their home in Albuquerque, and ending Monday night in New York, the Smileys said they took the child to protect him from others who could not take care of his dire medical needs.
"Now that you've shown your face on television … all over the world, I'm sure there's no place you can hide now," the judge said while making sure that the couple turns over their expired passports to prosecutors.
Propp, an emergency medical technician who was prepared to be a character witness for the Smileys at trial, said afterward that he was disappointed yet relieved with the disposition.
"This obviously isn't the perfect outcome that we wanted," he said while pushing the wheelchair carrying the woman who raised him out of the courtroom. "It's jail time and that's upsetting. But with regard to what it could have been—you know, I'm not what you'd say, happy, but I'm relieved that it's over."
The plea deal also calls for the Smileys to pay $100,000 restitution to Propp's biological father, Anthony Russini, for the private legal and investigative fees incurred while searching for his oldest son.
Russini, 42, of Westbury, has said he never wanted the child put up for adoption and that the biological mother's father forced her to do it.
Russini, a union plumber, watched the Smileys confess alongside several of his relatives, including his daughter, Jennifer, 18, and her 7-month-old son. Russini's other son, Christopher, 20, died of carbon monoxide poisoning in October.
"It's not what I would have hoped for, but it will have to do," a diplomatic Russini said of the Smileys' sentences. "It's vindication to hear them say guilty, they did it. But I knew they did it all along. They took my son."
Propp's biological mother, Deborah Gardner, who lives in Florida, has shunned the media during the Smileys' prosecution.
The Smileys had each faced up to 25 years in prison if convicted of second-degree kidnapping, the lone charge lodged against each of them in a 1982 indictment.
However, the couple's defense attorneys, Steven Brill and Raymond Colon, reached the plea agreement with prosecutors a day after jury selection began for what would have been a month-long trial.
"Knowing what we knew … to us it was a no-brainer and a very good deal for our clients," said Brill, who represents Judith Smiley.
The deal called for Brill's client to be re-arraigned on a lesser charge of custodial interference, which carries a maximum penalty of 4 years in prison, so that she could serve minimal time behind bars.
Brill said Smiley likely would stay in the Rikers Island infirmary because she suffers from rheumatoid arthritis and has had two knee replacement surgeries over the past year.
Queens District Attorney Richard Brown said at a news conference that he was satisfied the Smileys had finally admitted their actions were criminal.
"This is a terribly sad and tragic case," Brown said. "It has torn apart the lives of two families."
While the district attorney said he did not want to risk having a jury nullify what the Smileys did with a not guilty verdict, he said his main motivation was helping a child who "through no fault of his own … was placed in an untenable position."
"Whatever healing is to come is now left in the hands of the parties to this tragedy—and to time," Brown said.
A Kidnap Chronology
Key events in the Smiley kidnapping case.
March 8, 1979: Anthony Joseph Russini born at Syosset Hospital to Anthony Russini and Deborah Gardner. The baby is turned over to Barry and Judith Smiley for adoption. A month later, Russini and Gardner sue for custody.
Nov. 2, 1979: A Queens Family Court judge orders the child be returned to his biological parents. The Smileys appeal and lose.
June 6, 1980: On the day the child is to be turned over to Russini and his wife, the Smileys disappear. They relocate to New Mexico and change their names to Bennett and Mary Propp.
March 8, 2001: After arranging a meeting between the boy—now known as Matthew Propp—and Anthony Russini, Barry Smiley, 56, surrenders in Queens State Supreme Court on kidnapping charges. He pleads not guilty and is held in lieu of $25,000 bail.
April 26, 2001: A Queens Family Court judge calls the alleged kidnapping a "tragedy of enormous dimension" but says he has "no authority for the imposition of sanctions."
June 6, 2001: Judith Smiley, unable to travel earlier because of illness, surrenders on kidnapping charges. She is released on $25,000 bail.
Sept. 10, 2001: State Supreme Court Justice Joseph Grosso refuses to throw out kidnapping charges against the Smileys.
June 13, 2002: In an interview, the Smileys say they fled New York because they wanted to protect the boy from "people who could not care for him."
June 19, 2002: The Smileys plead guilty to second-degree kidnapping, and Judith Smiley pleads guilty to first-degree custodial interference. Under terms of a plea agreement, Barry Smiley faces 2 to 6 years in prison and his wife faces 6 months in jail and 4 1/2 years' probation. The couple agrees to pay $100,000 restitution to Anthony Russini.
