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Couple asks boro judge to drop kidnap charges

By Betsy Scheinbart

A couple accused of kidnapping a baby boy and taking him from Jamaica Estates to New Mexico 21 years ago are trying to have the criminal charges against them dropped in State Supreme Court in Queens.

Assistant District Attorney Lucina Suarez filed a motion Friday with State Supreme Court Judge Joseph Grosso arguing against the request by Barry and Judith Smiley that the case should be dismissed.

In motions filed with the court in July, the Smileys claimed they fled Queens with the baby they named Matthew out of love for the child.

“This is not your common kidnapping case,” Barry Smiley’s attorney, Raymond Colon, said in a telephone interview Tuesday.

Colon said the defendants asked the judge to dismiss the indictment and cited a specific criminal procedure that requires several criteria to be considered before prosecution can proceed in a case that is two decades old.

The crime’s impact on society, on the victim, the likelihood of detention, the defendants’ health, any criminal history and their character are all considered in the criminal procedure, Colon said.

“Nothing happened to the child in terms of his well-being,” Colon said, but he acknowledged the prosecution would argue otherwise.

In her memorandum in opposition to the motion to dismiss the case, Suarez wrote “Matthew was a victim, notwithstanding the defendants’ claim that he was raised in a good home by loving parents.”

Grosso may decide whether or not to dismiss the case against the Smileys by Sept. 10. If he does not dismiss the case, Colon expects it will go to trial.

The Smileys surrendered to authorities earlier this year after living in Albuquerque, N.M. for the past two decades, using false Social Security numbers and the surname “Propp.”

Both Barry and Judith pleaded not guilty to kidnapping the child they have raised since he was 3 days old. They were each released on $25,000 bail.

If convicted of kidnapping, the Smileys face a minimum of two to six years and a maximum of 25 years in jail.

The baby was born March 8, 1979 at Syosset Hospital on Long Island to 19-year-old Debbie Gardner. The newborn was taken from the hospital by his maternal grandfather, who allegedly tricked his daughter into signing papers for him to adopt the baby. He then passed the newborn to an attorney who gave the child to the Smileys.

Soon afterward, Gardner and her boyfriend, the child’s father, Anthony Russini, went to family court to get their child back.

In 1980, a Queens Family Court Judge ordered the Smileys to return the boy to his natural parents. Instead, they fled their Jamaica Estates home with the child, leaving behind their high-level positions in the city administration.

The Smileys were held in contempt of court for not returning the child and the judge ruled that no adoption ever took place.

The Smileys did not tell Matthew Propp of his background until he turned 21. Barry Smiley surrendered to Queens District Attorney Richard Brown’s office March 8 and his wife surrendered June 6. Both pleaded not guilty to kidnapping charges and were released on $25,000 bail.

Barry Smiley, 56, suffers from diabetes and Judith Smiley, 54, has been using a wheelchair following recent knee-replacement surgery.

Their attorneys argue that their poor health should be considered as one of the reasons why the couple should not be incarcerated, but the assistant district attorney disagrees.

“Neither defendant makes out any serious or life-threatening condition that would make a jail sentence ‘tantamount to a death sentence,’” Suarez argued. “Rather, defendants’ litanies of ailments are merely the normal effects of late middle age.”

But Colon countered by saying “my client has more health problems, but even she [Judith Smiley] is in pretty bad shape, having had knee replacement surgery. I can’t imagine that is normal aging.”

Matthew Propp has said that he fully stands behind his adoptive parents.

Reach reporter Betsy Scheinbart by e-mail at [email protected] or call 229-0300 Ext. 138.