Kidnapping and Incidental Confinement (Part 2)

The New Jersey Supreme Court continued in relevant part: Indeed, this case represents a classic example of kidnapping by confinement. Here, the nature of the confinement not only subjected C.M. “to substantial isolation,” but also “reached a form of terrifying and dangerous aggression not otherwise adequately punished.” See Final Report § 2C:13-1 cmt. 3 at 182 (quoting Model Penal Code § 212.1, cmt. 1 at 15 (1960)).

In our view, the sheer duration of the confinement combined with the crimes committed against her alone meet the “substantial period” requirement — even if the repetitive acts of sexual abuse and the physical assaults were co-extensive with the prolonged confinement. We therefore reject the Appellate Division’s conclusion that a kidnapping did not occur because the “incessant criminal attack throughout C.M.’s hours-long ordeal, and her isolation and vulnerability were coextensive and coterminous with the sexual abuse.” This case meets all of the statutory criteria for first-degree kidnapping: defendant confined C.M. for a substantial period with the purpose to facilitate the commission of sexual crimes and aggravated assault and to terrorize C.M.; he accomplished the confinement by force and threat; and he did not release C.M. unharmed and in a safe place before his apprehension.

The concern expressed in Masino about the potential for prosecutorial overreach in transposing a kidnapping charge over a substantive crime — a “‘bonus’ count in an indictment” — is not present here. The evidence in this case, viewed in the light most favorable to the State, clearly established an ample basis for a reasonable jury to return a verdict of first-degree kidnapping beyond a reasonable doubt. The trial court properly denied defendant’s motion for a judgment of acquittal.

For the reasons expressed, we reverse the judgment of the Appellate Division and reinstate defendant’s first-degree kidnapping conviction. We remand to the Appellate Division to address defendant’s previously raised challenge to his sentence.

One element of kidnapping that is vague and subject to debate is what is meant by “[not] releasing unharmed’ or harming before release. It is unclear if the “harm” contemplated is satisfied by psychological harm or if tangible physical harm is required.