For affirmance -- Chief Justice Hughes and Justices Sullivan and Schreiber. For reversal -- Justices Mountain and Pashman and Judge Conford. Pashman, J., dissenting. Justice Mountain and Judge Conford join in this opinion.
The Court being equally divided, the judgment of the Appellate Division, 135 N.J. Super. 6, is affirmed.
PASHMAN, J., dissenting. Defendant Thomas Wooten was one of 41 inmates indicted for various offenses which were committed during the 1971 Rahway State Prison riot. That disturbance began on the evening of November 24, 1971 with a violent assault on the prison superintendent, U. Samuel Vukcevich, by a group of inmates. Vukcevich was attacked in the prison auditorium as he was attempting to calm an unruly crowd of inmates who were shouting and chanting about local grievances. In the course of the attack, he was stabbed several times and slashed with a razor. He was then taken from the auditorium with three other correction officers and forcibly confined in a cell for the next 24 hours while the prisoners and outside officials negotiated over their release.
At about the same time, another correction officer, John Monteyunas, was attacked by an inmate on the top floor of "Four Wing", which is a separate section of the prison facility. The inmate struck Monteyunas on the head and took his keys. Another prisoner assisted the officer by supplying him with a prisoner's uniform and hiding him in a cell on the top floor of "Four Wing", which was under inmate control by that point. He remained there for about 45 minutes until a third inmate discovered his presence and reported it to defendant. With the help of several other prisoners, defendant took Monteyunas from the cell and dragged him from the top floor of "Four Wing" down two floors to Cell 25 where the other hostages were being held. One hostage was released
on November 25 as part of a bargain with negotiating officials; the others were unilaterally released shortly thereafter by their inmate guards.
Defendant was indicted on four counts of aiding and abetting the kidnapping and four counts of aiding and abetting the false imprisonment of these officials.*fn1 Charges concerning the abduction of officer Benjamin Henderson were dismissed on the State's motion at the close of its case. Those stemming from the seizure of Vukcevich and a third officer initially seized in the auditorium, Alphonse Iorio, resulted in a jury verdict of guilty on the false imprisonment charge and an acquittal on the kidnapping charge. As to Monteyunas, however, the jury found defendant guilty of both kidnapping and false imprisonment. The trial court set aside the conviction of false imprisonment, ruling that it merged with kidnapping. He sentenced defendant to a term of 30 to 31 years on the kidnapping count*fn2 (the minimum sentence being 30 years under N.J.S.A. 2A:118-1), and to two-to-three year sentences on the four other counts, all to be served concurrently with the sentence defendant was then serving in State Prison.
Defendant has attacked the indictment and conviction for kidnapping on various grounds. Prior to trial he unsuccessfully
moved to dismiss the false imprisonment and kidnapping counts on the ground that the relevant statutes, N.J.S.A. 2A:85-1 and N.J.S.A. 2A:118-1 respectively, were facially unconstitutional. The trial judge also denied two post-trial motions for a judgment of acquittal on the kidnapping charge and for a new trial. He rejected defendant's argument that movement of a victim within a single building did not constitute sufficient asportation for the purposes of N.J.S.A. 2A:118-1, relying instead on the increased risk of danger in moving Officer Monteyunas down two floors to a different cell. He also found sufficient evidence to support the jury's finding that defendant had dragged Monteyunas from one cell to the other.
The Appellate Division affirmed defendant's conviction. 135 N.J. Super. 6 (App. Div. 1975). Judge Kolovsky, in an opinion adopted today by three members of our equally divided Court, agreed with the trial court's holding that the movement of Monteyunas from the eighth tier of "Four Wing" to a lower tier two floors below constituted asportation within the meaning of the statute. Stressing the distance of the removal (some 700 feet), he concluded that defendant's argument "lacks a shadow of substance." Id. at 11. The Appellate Division also refuted defendant's contention that the asportation was incidental to an underlying crime of assault and battery or false imprisonment. It identified the underlying crime as "kidnapping -- an aggravated species of false imprisonment -- a crime whose purpose was the taking and holding of a hostage." Id. In such cases, it said, any movement, no matter how slight, is enough to satisfy the element of asportation. Id. at 12.
We granted certification, 69 N.J. 80 (1975), and permitted defendant to submit a supplemental brief raising additional arguments for reversal of his kidnapping conviction, the most substantial of which is that the mandatory minimum penalty of N.J.S.A. 2A:118-1 violates constitutional guarantees
against cruel and unusual punishment. U.S. Const., Amend. VIII, XIV; N.J. Const. ...