June 2, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN E. KINDT, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-08-1617I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 15, 2008
Before Judges Winkelstein and LeWinn.
Defendant, John E. Kindt, Jr., was charged, along with co-defendants, Stacey Froland-Kindt [Froland] and Matthew Aronson [Aronson],*fn1 under Monmouth County Indictment No. 02-08-1617 with two counts of first-degree kidnapping, in violation of N.J.S.A. 2C:13-1(b)(counts one and two); two counts of second-degree interference with custody, in violation of N.J.S.A. 2C:13-4(a)(1) (counts three and four); fourth-degree contempt of court, in violation of N.J.S.A. 2C:29-9 (count five); two counts of third-degree attempted interference with custody, in violation of N.J.S.A. 2C:5-1 and 2C:13-4(a)(1) (counts six and seven); and second-degree conspiracy, in violation of N.J.S.A. 2C:5-2; N.J.S.A. 2C:13-1(b); and N.J.S.A. 2C:13-4(a)(1) (count eight).
Defendant is the father of two children from his prior marriage to Anne O'Connor, J.K. and O.K.*fn2 O'Connor is the residential custodian of the children. Defendant, Froland and Aronson were charged with removing the children from New Jersey to North Carolina, without O'Connor's permission, and with the intent of permanently removing the children from the United States.
Defendants were tried separately. Following a jury trial, defendant was acquitted of the two kidnapping charges and was convicted on all remaining counts of the indictment. On February 16, 2006, the court sentenced defendant as follows: on counts three and four, concurrent seven-year terms; on count five, a nine-month concurrent term; counts six, seven and eight were merged into counts three and four.
On October 27, 2006, defendant moved before the trial court for (1) a reduction of his sentence and (2) bail pending appeal.
Following oral argument, the trial judge rendered a decision from the bench denying both motions. The judge entered an order reflecting this decision on the same date.
Defendant now appeals the denial of his two motions, raising the following issues:*fn3
I. The sentence imposed upon the defendant is violative of the principle of uniformity in sentencing in that his co-defendant received a vastly more lenient sentence.
II. The competent credible evidence does not support the trial court's determination as regards mitigating factors used in sentencing.
III. The excessive disparity, both formally and practically, between the defendant's sentence and that of his co-defendant represents a fundamental injustice.
IV. The motion court erred in denying bail pending appeal, by not finding that there is a substantial question of law involved in the defendant's case.
Having reviewed the entire record, we conclude that defendant's arguments are without merit. Therefore, we affirm the trial court's order of October 27, 2006.
Defendant's first argument regarding his sentence is premised upon the following analysis. Froland had been convicted of first-degree kidnapping as well as second-degree interference with custody. At sentencing, her first-degree offenses, which carried a maximum sentence of twenty years, were reduced to second-degree, and she received an aggregate custodial term of seven years.*fn4 Because defendant received the same aggregate sentence for his conviction on second-degree offenses, he argues that there is a thirteen-year disparity between his sentence and that of Froland. Defendant contends that because one jury found Froland guilty of the more egregious crime of first-degree kidnapping, and another jury acquitted him of those more serious offenses, the identical seven-year aggregate sentences "ignore the verdict of the respective juries in [their] trials" and, therefore, are impermissibly disparate.
However, on December 12, 2007, the Supreme Court reversed Froland's convictions for first-degree kidnapping, concluding that, "absent any evidence of 'force, threat or deception,' Froland could not be convicted of kidnapping because she had the consent of Kindt who is clearly a 'parent' within the meaning of the statute [N.J.S.A. 2C:13-1(b)]." State v. Froland, 193 N.J. 186, 201 (2007). The Court noted that both Froland and defendant "were subject to prosecution under the interference with custody statute [N.J.S.A. 2C:13-4]." Ibid.
Thus, Froland's sentence for first-degree kidnapping has been vacated. In light of that result, defendant's sentencing argument based on a claimed disparity with Froland is moot.
Defendant's second argument, that his seven-year aggregate sentence is excessive, is also without merit. Having been convicted of second-degree offenses, defendant faced a presumption of incarceration. N.J.S.A. 2C:44-1(d). That presumption is mandatory "unless, having regard to the character and condition of the defendant, [the court] is of the opinion that his imprisonment would be a serious injustice which overrides the need to deter such conduct by others." Ibid.
Having correctly concluded that the presumption of incarceration had not been overcome, the trial judge then thoroughly analyzed the aggravating and mitigating factors applicable to defendant. N.J.S.A. 2C:44-1(a) and (b). The judge rejected defendant's request to apply mitigating factors two ("defendant did not contemplate that his conduct would cause or threaten serious harm"), eight ("defendant's conduct was the result of circumstances unlikely to recur"), and eleven (defendant's imprisonment "would entail excessive hardship to himself or his dependents"). N.J.S.A. 2C:44-1(b)(2), (8), and (11). The judge stated:
I'm going to state why I'm not finding those mitigating factors. First, let us deal with harm. There has been harm to everyone in this case. His four children are harmed, [J.K.] and [O.K.] were separated from the mother Anne O'Connor.
This is at a point when they are of tender years, they were young. Taking the children at that point is highly traumatic. He also separated from his present children [S.K.] and [A.K.]. His actions have caused harm to them.
I also point out that his present children . . . lost their mother Stacey Froland Kindt when she was in state prison for about 18 months or so during a time when they were very young.
So there is a loss to all four of these children and it is rather stark when you come down and look at it, the harm to the former wife . . . is obvious, manifests itself. Every parent's nightmare not to know where their children are and to have them abducted really not be stated any further than that. It is certainly exceedingly difficult to Anne O'Connor, lost her children and the traumatic manner that she did not know where they were, so she was harmed.
As the [p]rime mover, he was the one who controlled the entire conspiracy, directed the course of action. I quite frankly seriously doubt that Stacey Froland Kindt would have ever seen the inside of a courtroom let alone the inside of State Prison but for the fact that she was married to John Kindt. So she is clearly a victim in here as well. . . . .
He was caught red handed. There wasn't any point in not trying to spare his wife. He didn't do that but there is something here that really troubles me and that has to do with his 18 year old nephew . . . Matthew Aronson.
He was sent to live with John Kindt because apparently Matthew was having some difficulties and he entered into this contract . . . whereby Matthew was supposed to go to church, go to school and participate in the family. That is all well and good but then Mr. Kindt takes this 18 year old kid and involves this kid in a kidnapping conspiracy. This 18 year old kid had to spend three weeks in jail.
He was indicted and frankly by the grace of the prosecutor, the case is going to be dismissed against him. Why not just let the kid go home to his parents and not involve him in this sort of thing.
I'm sorry, that is just despicable. I was trying to think of why he would [not] just let Matthew Aronson go home and not drag him in this. And maybe he used the child to help him in the plots or maybe there was a question of security. He didn't want anybody to know what was going on, but just no excuse. It is bad enough you get your wife involved now you have to get some 18 year old kid involved in this. That is just terrible.
There is obviously harm to his in-laws both past and present. Mrs. Froland had to see her daughter go to prison. His parents have suffered personal and financial harm in this case by having to continuously pay for everything. Obviously problems they had to go through in suffering through all of this.
There is another thing that just concerns me that Mr. Kindt is very manipulative. He blames everybody for his problems, for the crimes he committed.
He deflects the blame by violating [sic] his ex-wife, his former father-in-law. Even in the judiciary, everybody else is to blame but him. That is just ridiculous.
He has no regard for the legal system and he disobeys court orders as we've seen in this case. He is very deceptive. He puts together an elaborate plan to cover his tracks, to conceal his assets and frankly to just disappear.
I received many letters from friends and supporters and people speaking here today and testifying to Mr. Kindt's good character. The truth is that Mr. Kindt has a whim and any coarse attitude [sic] he is controlling, deceptive, manipulative and self-centered.
He has harmed people with lies at will and he seems to have harmed just about everybody else he comes in contact with that I could see.
He speaks the language of a righteous and upright man but his actions are anything but. There is not much that I have seen of this man over the last two or three years that is . . . commendable.
For these reasons, I cannot find the mitigating factors that counsel urges. I do find mitigating factor as I said before that he has no prior history. I've not found the aggravating factor that the State alleges, aggravating factor three that there is a risk that he will commit another offense because that is inconsistent with the fact that Mr. Kindt has no prior record.
So in sum, I find aggravating factor nine, the need to deter and mitigating factor seven, he has no prior history. The aggravating factor absolutely outweighs the mitigating factors but it's close to being in equipoise. I'm going to go with the middle point of the range.
Defendant contends that the trial judge failed to give any weight to his prior law-abiding and productive life, as evidenced, at least in part, by letters submitted to the judge on defendant's behalf. However, as noted, the judge acknowledged the numerous testimonials supporting defendant and discounted them for the reasons stated. In denying defendant's motion to reduce his sentence, the judge stated: "Contrary to the defendant's assertions the Court did consider his background when assessing mitigating factors. The Court simply does not agree with defendant's assessment."
We are convinced that defendant's aggregate seven-year sentence is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. Judge DeStefano's sentencing decision properly "follow[ed] not from a quantitative, but from a qualitative, analysis." State v. Kruse, 105 N.J. 354, 363 (1987). Both at sentencing and at the motion for reduction of sentence, the trial judge thoroughly reviewed the record and explained his reasoning in weighing the statutory factors. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).
Finally, defendant's argument that the trial judge erred in denying his motion for bail pending appeal is "without sufficient merit to warrant discussion in a written opinion[.]" R. 2:11-3(e)(2). Defendant has failed to articulate any "substantial question" presented by his appeal in Docket No. A-3588-05T2, as required by Rule 2:9-4.