By Betsy Scheinbart
A Queens Judge denied a motion Monday to dismiss the case against a New Mexico couple accused of kidnapping a baby boy from Jamaica Estates 21 years ago.
State Supreme Court Justice Joseph Grosso declined the request by Barry and Judith Smileys’ attorneys that the charges against them be dropped in the interest of justice.
“No court can undo the loss suffered by the biological family,” Grosso said, reading his decision in the Kew Gardens court. “This family had a valued member stolen from them. This family had its history changed forever.”
The family member in question, Matthew Propp, 22, sat in court Monday with his girlfriend, Lisa Oden, 19. Propp, who was raised by the Smileys in Albuquerque, N.M. has openly supported the Smileys since they surrendered to the Queens district attorney earlier this year.
Both pleaded not guilty to kidnapping charges and were released on $25,000 bail.
After the judge disclosed his decision, the Smileys’ attorneys asked Grosso to consider dismissing the case on the grounds that police did not conduct an adequate search for the boy, Assistant District Attorney Lucinda Suarez said.
Suarez noted that it is the FBI’s responsibility, not the Police Department’s, to search for missing children.
“I don’t believe the case is going to be dismissed on these grounds,” she said.
Propp came to live with the Smileys a few days after he was born to a 19-year-old unwed Long Island woman named Debbie Gardner in 1979. Gardner told police her father had tricked her into signing adoption papers.
Gardner soon married the child’s father, Anthony Russini, and the two fought to get their baby back. In 1980, a family court judge ordered the Smileys to return the child to his biological parents. The Russinis went to the Smileys’ Jamaica Estates home to retrieve the child, but found the house abandoned.
The Smileys used the surname Propp and allegedly adopted new Social Security numbers after leaving Queens in 1980. The FBI, police and private investigators hired by the Russinis were unable to locate the child.
“For 20 years, this family has endured the loss of this child,” Grosso said of the Russinis, “but they never gave up hope. They loved that child.”
The Smileys’ attorneys argued in motions filed over the summer that their clients fled Queens with the child out of love for the baby— a defense that Grosso reputed.
“There is no legal or moral justification present in this case that could excuse the defendants’ conduct,” Grosso said.
The Smileys’ attorneys further argued that their clients both are in poor health and their conditions would decline if they were incarcerated.
Barry Smiley, 56, suffers from diabetes and Judith Smiley, 54, has been using a wheelchair following knee surgery. But Grosso said that people with much more serious health problems are incarcerated every day and the Smileys’ health problems would not merit a dismissal of the case.
Grosso considered that the Smileys were law abiding citizens before they allegedly adopted false security numbers and identities, fleeing Queens with the baby. However, he said dismissing the case would have “an adverse effect” on society.
“To encourage a ‘take the kid and run’ approach to adoption is unconscionable,” said Grosso, who is an adoptive parent himself.
Grosso said the Smileys obviously did a good job of raising Matthew Propp, but that this did not excuse their other actions.
“I don’t doubt you love Matthew and enjoy a loving parent-child relationship,” Grosso said to the Smileys. “However, whatever relationship exists is based upon a lie.”
The Smileys did not tell Propp he was adopted until he was 21 and pursuing a career in law enforcement. He took a job as a security guard at a New Mexico hospital, where he met his girlfriend, Lisa Oden, who worked in the ER.
“I just wanted to be here to support him,” Oden said after the court hearing. “He got put in a spot he didn’t want to be in.”
Propp has begun to establish a relationship with the Russinis over e-mail and when he visits New York for the Smileys’ court dates.
“He’s got a big heart and he doesn’t want to push them away,” Oden said about Propp’s feelings toward the Russinis. “He feels for both sides.”
Anthony Russini, Propp’s biological father, said he was relieved the judge did not allow the case to be dismissed.
“The tough part is to develop a relationship with my son,” Russini said.
Russini and several of his immediate family members who attended the hearing said they thought the Smileys should serve time in jail for what they did, even though that is not what Propp or his biological mother have advocated.
Propp’s biological mother, who lives in Florida, has not attended any of the court hearings but has made the judge aware that she does not want the Smileys to be jailed.
Reach reporter Betsy Scheinbart by e-mail at Timesledger@aol.com or call 229-0300 Ext. 138.
