By Courtney Dentch
The couple accused of kidnapping a baby boy from Jamaica Estates more than 20 years ago has filed motions to reduce the charges against them to custodial interference, one of their defense lawyers said Friday.
Judith, 55, and Barry Smiley, 57, formerly of 80-51 190th St. and now living in Albuquerque, N.M., are charged in the 1980 kidnapping a of toddler they were trying to adopt and could face up to 25 years in prison if they are convicted. The reduced charges of custodial interference would carry a maximum sentence of four years.
The attorneys were expected to argue the motion in State Supreme Court in Kew Gardens Wednesday, a spokeswoman for Queens District Attorney Richard Brown said.
Jury selection for the trial on the kidnapping charges is scheduled to begin June 17, said Raymond Colon, Barry Smiley’s lawyer.
The Smileys’ attorneys argued for the reduced charges, saying that they were the boy’s parents for the first 14 months of his life, Colon said. The motion states that under state law, relatives should not be charged with kidnapping when a child is taken without malicious intent, especially in custody battles, he said.
The prosecutors were expected to answer the motion Wednesday, Colon said.
The Smileys, who used the aliases Mary and Bennett Propp for more than 20 years while living on the lam, raised the boy, now 23, as Matthew Propp.
The newborn was taken from the hospital by his maternal grandfather, who allegedly tricked his 19-year-old daughter, Deborah Gardner, into signing adoption papers. He then passed the newborn to an attorney who gave the child to the Smileys.
Months later, Gardner and her boyfriend, Anthony Russini, the child’s father, went to family court to get their child back.
In 1980, a Queens Family Court judge ordered the Smileys to return the child to his natural parents after the couple had cared for him for 15 months. He said the adoption was not legal. Instead of handing the boy over, they fled their Jamaica Estates home with the child, leaving behind their high-level positions in the city administration.
The couple was held in contempt of court for not returning the child.
The Smileys did not tell Matthew Propp of his background until he turned 21. In March 2001, Barry Smiley surrendered to Queens District Attorney Richard Brown’s office and pleaded not guilty to kidnapping the child.
Both Judith and Barry Smiley are free on $25,000 bail. Matthew Propp, a hospital security guard, still lives with them in New Mexico.
The defense attorneys have also been trying to reach a plea agreement that would not include jail time for the Smileys since they surrendered last year, said Raymond Colon, Barry Smiley’s lawyer. However, no agreement has been reached, and Russini, the boy’s biological father, is adamant that they stand trial.
Reach reporter Courtney Dentch by e-mail at TimesLedger@aol.com, or by phone at 229-0300, Ext. 138.
