cdTOCtest

residential building, so that defendant and his cohort
could more easily assault her.

State v. La France, 117 N.J. 583 (1990), held that the
Masino formulation is applicable to prosecutions for
kidnapping based upon confinement for a substantial
period of time. The defendant, a burglar, forced a woman
who was seven months pregnant to tie up her husband;
defendant then dragged the woman into the hallway
where he sexually assaulted her. The husband was bound
for at least thirty minutes while these events were
transpiring, until he was able to free himself and rescue
his wife.

In State v. Lyles, 291 N.J. Super. 517 (App. Div.
1996), certif. denied, 148 N.J. 460 (1997), evidence was
insufficient to allow first-degree kidnapping charge to be
considered by the jurors where any unlawful
confinement was simply ancillary to the sexual assault;
defendant’s remaining outside the victim’s door for an
hour after the assault was not the requisite statutory
confinement as she was no longer in any danger from
defendant and if her perception was otherwise, she could
have opened a window and screamed for help.

In State v. Trochin, 223 N.J. Super. 586 (App. Div.
1988), the evidence was insufficient to support a
conviction for first-degree kidnapping where victim
voluntarily was a passenger in defendant’s car and, except
for unsuccessfully telling him three times that she wanted
to be driven home, felt no fear until he stopped the car in
a dark and deserted park and sexually assaulted her.

C. Elements of Kidnapping

State v. Federico, 103 N.J. 169 (1986), construing
N.J.S.A. 2C:13-1c, held that in order to obtain a first-
degree conviction, the State is required to prove beyond
a reasonable doubt that the victim was not released
unharmed and in a safe place prior to the defendant’s
apprehension. According to the Court, harming or
failing to release the victim fall within the definition of
“element” as set forth in N.J.S.A. 2C:1-14h(a).

State v. Smith, 279 N.J. Super. 131 (App. Div. 1995),
construing N.J.S.A. 2C:13-1c(2), viewing State v.
Federico, 130 N.J. 169, as controlling, held the
preconditions for an enhanced penalty of life with a
parole disqualifier of twenty-five years are elements of the
crime to be proved by the State beyond a reasonable
doubt. Thus, for the enhanced penalty to be operative,
the State has to establish that a first-degree kidnapping
occurred, that the victim was less than sixteen years old

and that during the kidnapping crimes under N.J.S.A.

2C:14-4, N.J.S.A. 2C:14-3a or N.J.S.A. 2C:24-4b were

committed against the victim. The Smith court also held

that an attempt to commit one of the enumerated crimes

does not satisfy the statutory requirements.

D. Jury Instructions

According to State v. Brent, 137 N.J. 107 (1994),

uncontradicted evidence that defendant removed victim

from a public street, carried her across the street, struck

her on the face to subdue her and dragged her by her shirt

into the dense woods of an abandoned lot where he

sexually assaulted her precluded a rational basis for a jury

charge on the lesser-included offense of criminal

restraint.

In State v. La France, 117 N.J. 583 (1990), the Court

suggested that in a prosecution for kidnaping based on

confinement for a substantial period of time the trial

court should fashion a jury charge using the following

factors for the jury to consider: the duration of the

detention, whether the detention occurred during the

commission of a separate offense, whether the detention

was inherent in the separate offense and whether the

detention created a significant danger to the victim or

another independent of the separate offense.

In State v. Johnson, 309 N.J. Super. 237 (App. Div.),

certif. denied, 156 N.J. 387 (1998), where defendant

separated an upset three-year old child from her mother

and left the child under the bushes at 9:00 p.m. near a

closed daycare center on a rainy November night, the

court found no error in the trial court’s instruction to the

jurors declining to define “safe place” and instructing the

jurors to consider all the circumstances of the child

victim’s release, including her age, in determining

whether the three-year old child was released in a safe

place. Common sense dictated that what might be “safe”

for an adult would be dangerous or precarious for a young

child.

E. Jury voir dire

In State v. Martini, 131 N.J. 176 (1993), a capital

case, where the State alleged as an aggravating factor that

the murder was committed during the course of a

kidnapping, the Court held prospective jurors must be

questioned on the effect that the aggravating factor would

have on their deliberations.