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State v. Masino

Decided: October 19, 1983.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
DONALD MASINO, DEFENDANT-RESPONDENT



On certification to the Superior Court, Appellate Division.

For reversal -- Chief Justice Wilentz, and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. For affirmance -- None. The opinion of the Court was delivered by Clifford, J.

Clifford

[94 NJ Page 437] In the early morning hours of an autumn Sunday defendant pulled L.F. from her car, beat her, dragged her across the road, across a stretch of grass, behind a cluster of trees, and down an embankment to a pond. There he struck her, sexually assaulted her, plunged her head repeatedly into the pond, took her clothes,

and left her by the water's edge naked, senseless, and near-drowned. The question presented is whether, in addition to the crimes of assault for which he was convicted, defendant was correctly convicted of kidnapping pursuant to N.J.S.A. 2C:13-1(b). We conclude that the conviction for kidnapping should stand. Moreover, the statute's requirement that the kidnapper remove his victim "a substantial distance from the vicinity where [the victim] is found" addresses the very risk of increased harm occasioned by this abduction.

At 2:00 a.m. on September 23, 1979 L.F. and her friend Cindy went to a disco club, where a man later identified as the defendant asked L.F. to dance. She accepted, but soon changed her mind because she was too tired. Because defendant said he felt insulted, L.F. apologized and invited him to accompany Cindy and her for coffee. Defendant, in his car, followed L.F. and Cindy in the victim's car. On the way Cindy changed her mind about the coffee and asked L.F. to drive her home. After leaving Cindy, L.F. pulled out from Cindy's driveway and drove a short distance down the road to where defendant had parked. L.F. rolled down her window and told defendant she had decided to go home, whereupon defendant asked for directions to the Garden State Parkway. Moments later he entered the passenger door of L.F.'s car and began kissing her. She rebuffed him and insisted that she had to go home. Defendant got out but reappeared on the driver's side, announced "O.K. bitch, now you're going to get it," punched her several times in the face and tried to pry her from her grasp on the steering wheel. Weakened by the blows, L.F. finally let go and alighted from the car. She tried to flee across the road toward Cindy's house but defendant caught her, thrashed her, and warned he would kill her if she made any noise. He dragged her back across the street and down to the pond where he threatened to drown her as he repeatedly thrust her face under water. He then ripped off some of her clothes, sexually assaulted her, beat her again, stripped her completely, and fled with her clothes. L.F. crawled to the street and searched in vain for Cindy's house. After

running naked down several streets she finally located her friend's house, from where the police were called.

A jury convicted defendant of, among other things, kidnapping, N.J.S.A. 2C:13-1(b), terroristic threats, N.J.S.A. 2C:12-3, aggravated assault, N.J.S.A. 2C:12-1(b)(1), and aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3). The kidnapping statute, N.J.S.A. 2C:13-1, reads:

a. Holding for ransom, reward or as a hostage. A person is guilty of kidnapping if he unlawfully removes another from the place where he is found or if he unlawfully confines another with the purpose of holding that person for ransom or reward or as a shield or hostage.

b. Holding for other purposes. A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period, with any of the following purposes:

(1) To facilitate commission of any crime or flight thereafter;

(2) To inflict bodily injury on or to terrorize the victim or another; or

(3) To interfere with the performance of any governmental or political function.

c. Grading of kidnapping. Kidnapping is a crime of the first degree and upon conviction therefor a person may, notwithstanding the provisions of 2C:44-1 f., be sentenced to an ordinary term of imprisonment between 15 and 30 years. If the actor releases the victim unharmed and in a safe place prior to apprehension, it is a crime of the second degree.

d. "Unlawful" removal or confinement. A removal or confinement is unlawful within the meaning of this section and of sections 2C:13-2 and -3 if it is accomplished by force, threat or deception, or, in the case of a person who is under the age of 14 or is incompetent, if it is accomplished without the consent of a parent, guardian or other person responsible for general supervision of his welfare.

Unlike other first degree crimes, which carry a sentence exposure of 10 to 20 years, kidnapping calls for a sentence of between 15 and 30 years. N.J.S.A. 2C:13-1(c).

In its charge the trial court instructed the jury that to convict defendant of kidnapping it had to find that defendant had moved his victim a "substantial distance." The court defined "substantial" as "an ample or considerable amount, quantity, size and so forth * * *" but added that "substantial" referred ...


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