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Kosmin v. New Jersey State Parole Board

August 18, 2003


On appeal from the New Jersey State Parole Board.

Before Judges Pressler, Ciancia and Axelrad.

The opinion of the court was delivered by: Pressler, P.J.A.D.


Argued June 3, 2003

Appellant Margaret Kosmin appeals from the denial by respondent Parole Board of her application for parole. We have concluded from our review of this record that it cannot support the Parole Board's stated reason for denial of parole, namely, that if released she will be likely to commit another crime. Accordingly, we conclude that the denial of parole was arbitrary and unreasonable, and we reverse.

Kosmin pleaded guilty in 1994 to aggravated manslaughter, N.J.S.A. 2C:11-4a, as a lesser included offense of the first-degree murder with which she was charged; hindering apprehension or prosecution by the concealment of a weapon, N.J.S.A. 2C:29-3a(3), 2C:29-3b(1); and aggravated arson, N.J.S.A. 2C:17-1a(2). She was sentenced on December 16, 1994, to a twenty-year term subject to eight years of parole ineligibility for the manslaughter, a concurrent sentence of five years on the hindering, and a consecutive sentence of five years on the arson, for an aggregate sentence of twenty-five years subject to an eight-year parole ineligibility term. Her parole eligibility date was December 27, 2001.

The gravamen of appellant's crimes, in which she was aided by her accomplice, her friend Tammy Molewicz, was the shooting murder of William Kelly and their attempt to cover up the crime by burning the car in which they had transported his body to the woods. Appellant's motive for the murder was undisputed. After many years of severe physical, psychological and sexual abuse by Kelly, with whom she lived during two different periods of her life and who had fathered her daughter, she had apparently concluded that only his death would free her and her daughter from him and from the terror to which he had reduced her life.

The fact of the abuse and its severity were acknowledged by the trial judge at sentencing. A psychiatric report prepared for appellant's lawyers shortly before sentencing, whose factual recitals have never been challenged by the State, sets forth in excruciating detail the relationship between appellant and Kelly, which was the outgrowth of her own childhood traumas resulting from her father's drunken abuse of her mother and her mother's escape, leaving appellant and her younger sister with their father where they endured physical and emotional privations until they were eventually reunited with their mother after her remarriage.

By way of brief summary, appellant met Kelly at school when she was in the ninth grade. Kelly lived with his father, also an alcoholic wife-beater, following his mother's escape from the marital home and his parents' ensuing divorce. Appellant and Kelly began dating in 1975 when she was fourteen years old. Kelly was then already abusing drugs and alcohol. The cycle of Kelly's physical and sexual abuse of appellant began some months later and escalated to the point at which he brutally assaulted her at least weekly. He also forced her to drop out of school, beating her if she attempted to attend. Although she did attempt to return to school, she was again forced to leave because of her pregnancy and her daughter's birth, after which she moved in with Kelly and his father. Kelly's abuse of her only intensified, putting her in fear for her life and causing her to sleep with a knife under her pillow. At one point she attempted suicide by taking an overdose of pills, believing that if she tried to leave him he would make good his threats to kill her. Apparently in 1978 or 1979, appellant managed to extricate herself from Kelly and to successfully conceal herself and the child from him with her mother's assistance despite Kelly's continuous harassment of and threats to her family and friends in his efforts to locate her. Indeed, although she initially had no employment, she did not apply for welfare assistance for fear that Kelly might find her through the welfare system.

During the next fourteen years, appellant managed to put her life together, found satisfactory employment, and married a man who adopted her daughter. She lived for a brief time in Florida with her husband with whom she unsuccessfully attempted a reconciliation after the marriage had failed by reason of his infidelity. She returned with her daughter to New Jersey some time around 1990 and attempted to resume a normal life. In 1992, however, appellant learned that Kelly was attempting to locate her through her uncle by threatening his life. Eventually appellant communicated with Kelly's brother and sister, was told by them that he was ill and needed drug rehabilitation, and was asked to give him assistance. After meeting with him, she yielded to his entreaties that they reunite believing that he was no longer dangerous and had changed over the years. She was mistaken. After only a week or two, his violence, both physical mental, resumed, escalating in frequency and intensity and ultimately requiring her to obtain police assistance in physically removing him from her home after he broke down her locked bedroom door, a task accomplished only with the help of the canine unit. She obtained a restraining order, he was arrested for violating it and incarcerated, and after his release expressed remorse and begged appellant to take him back. She did so, only to be victimized again even more brutally than before, including an incident in which he beat her at a train station with a metal club. He began to leave threatening messages on her answering machine and she believed he really intended to kill her. She arranged a ruse with the police in order to get Kelly back to New Jersey, where he was again arrested and incarcerated. In the meantime appellant's own mental state began to deteriorate, she spent Christmas Day 1993 drinking and again attempted suicide by an overdose of pills. She was in mortal terror of Kelly's release from jail.

On the evening of December 26, 1993, Kelly called appellant from jail demanding that she post bail for him. She was by this time completely distraught and under the influence of alcohol and tranquilizers. Her friend Molewicz and she then decided to go to the jail to post bail, and appellant brought a gun with her, assertedly for her self-protection. They retrieved Kelly from jail, shot him, took his body to the woods and tried to burn Molewicz's car. Although in a subsequent statement to the authorities, appellant once said that she was the shooter, she continually denied that role both before and after, and, indeed, the sentencing judge noted that there was nothing in the record to indicate which of the women was the shooter. That fact has never been determined.

Both Molewicz and appellant were thereafter charged with the murder and the related crimes. Molewicz also pleaded guilty, and we were advised at oral argument that she had by then already been released on parole.

According to the record before us, appellant has been a model prisoner since her incarceration. Not only had she been infraction-free for seven years, but she also availed herself of a wide variety of programs, including NA/AA. As the panel eventually noted,"Your parole records abound with certificates for participating in programs too numerous to mention in this notice.*fn1

The Board panel has reviewed a bound set of documents entitled 'Institutional Program Certificates of Achievement and Recognition.' The Board Panel has also reviewed your Special Activities Reports and your ...

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