The opinion of the Court was delivered by
In the early morning hours of an autumn Sunday defendant pulled L.F. from her car, beat her, dragged her across the road, across a stretch of grass, behind a cluster of trees, and down an embankment to a pond. There he struck her, sexually assaulted her, plunged her head repeatedly into the pond, took her clothes,
At 2:00 a.m. on September 23, 1979 L.F. and her friend Cindy went to a disco club, where a man later identified as the defendant asked L.F. to dance. She accepted, but soon changed her mind because she was too tired. Because defendant said he felt insulted, L.F. apologized and invited him to accompany Cindy and her for coffee. Defendant, in his car, followed L.F. and Cindy in the victim’s car. On the way Cindy changed her mind about the coffee and asked L.F. to drive her home. After leaving Cindy, L.F. pulled out from Cindy’s driveway and drove a short distance down the road to where defendant had parked. L.F. rolled down her window and told defendant she had decided to go home, whereupon defendant asked for directions to the Garden State Parkway. Moments later he entered the passenger door of L.F.’s car and began kissing her. She rebuffed him and insisted that she had to go home. Defendant got out but reappeared on the driver’s side, announced “O.K. bitch, now you’re going to get it,” punched her several times in the face and tried to pry her from her grasp on the steering wheel. Weakened by the blows, L.F. finally let go and alighted from the car. She tried to flee across the road toward Cindy’s house but defendant caught her, thrashed her, and warned he would kill her if she made any noise. He dragged her back across the street and down to the pond where he threatened to drown her as he repeatedly thrust her face under water. He then ripped off some of her clothes, sexually assaulted her, beat her again, stripped her completely, and fled with her clothes. L.F. crawled to the street and searched in vain for Cindy’s house. After
A jury convicted defendant of, among other things, kidnapping, N.J.S.A. 2C:13-l(b), terroristic threats, N.J.S.A. 2C:12-3, aggravated assault, N.J.S.A. 2C:12-l(b)(l), and aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3). The kidnapping statute, N.J.S.A. 20:13-1, reads:
a. Holding for ransom, reward or as a hostage. A person is guilty of kidnapping if he unlawfully removes another from the place where he is found or if he unlawfully confines another with the purpose of holding that person for ransom or reward or as a shield or hostage.
b. Holding for other purposes. A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period, with any of the following purposes:
(1) To facilitate commission of any crime or flight thereafter;
(2) To inflict bodily injury on or to terrorize the victim or another; or
(3) To interfere with the performance of any governmental or political function.
c. Grading of kidnapping. Kidnapping is a crime of the first degree and upon conviction therefor a person may, notwithstanding the provisions of 2C:44-1 f., be sentenced to an ordinary term of imprisonment between 15 and 30 years. If the actor releases the victim unharmed and in a safe place prior to apprehension, it is a crime of the second degree.
d. “Unlawful” removal or confinement. A removal or confinement is unlawful within the meaning of this section and of sections 2C:13-2 and -3 if it is accomplished by force, threat or deception, or, in the case of a person who is under the age of 14 or is incompetent, if it is accomplished without the consent of a parent, guardian or other person responsible for general supervision of his welfare.
Unlike other first degree crimes, which carry a sentence exposure of 10 to 20 years, kidnapping calls for a sentence of between 15 and 30 years. N.J.S.A. 2C:13-l(c).
In its charge the trial court instructed the jury that to convict defendant of kidnapping it had to find that defendant had moved his victim a “substantial distance.” The court defined “substantial” as “an ample or considerable amount, quantity, size and so forth * * * ” but added that “substantial” referred to a “relative” distance that must have some “bearing on the evil at hand.”
II
Blackstone defined kidnapping as the “forcible abduction or stealing away of a man, woman, or child from their own country and sending them into another.” 4 W. Blackstone, Commentaries * 291. From approximately 1790 to 1898 New Jersey’s kidnapping statute followed Blackstone’s definition but broadened its reach by adding that removal could be from this state into another state or country. In 1898 the law was changed to provide that kidnapping occurred when the asportation of the victim was to any point within this state, or into another state or country. The immediate predecessor to our current kidnapping law, N.J.S.A. 2A:118-1, reads in part:
Any person who kidnaps or steals or forcibly takes away a man, woman or child, and sends or carries, or with intent to send or carry, such man, woman or child to any other point within this state, or into another state, territory or country * * * is guilty of a high misdemeanor, and shall be punished by imprisonment for life, or for such other term of not less than 30 years as the court deems proper.
In discussing the asportation requirement of common law kidnapping the drafters of the Model Penal Code recalled that
The elimination of the requirement that the victim be moved a fixed distance gave rise to such highly questionable results as convictions for kidnapping when the victim was forced to move from room to room as a robber ransacked his house. For instance, in
People v. Chessman,
38
Cal 2d
166, 192,
This approach rendered the asportation requirement meaningless. Worse, it meant that kidnapping’s harsh sentence, even when the movement constituting the “kidnapping” was simply incidental to the underlying crime of rape or robbery, was available to state public outcry or prosecutorial zeal. The potential for abusive prosecution became evident.
New York’s approach to the asportation requirement similarly fluctuated. In People v. Florio, 301 N.Y. 46, 92 N.E.2d 881 (1950), the court affirmed kidnapping convictions of defendants who had lured a woman to their car, driven from Manhattan to Queens, and then raped her. While conceding that “detention inevitably occurring during the immediate act of commission of such a crime as rape or robbery would not form a basis for a separate crime of kidnapping,” the court held that the circumstances of the case warranted conviction. Id. at 48-49, 92 N.E. 2d at 882.
Several years later, in
People v. Levy,
15
N.Y.2d
159, 256
N.Y.S.2d
793,
More recently, in
People v. Miles,
In short, the Levy * * * rule was designed to prevent gross distortion of lesser crimes into a much more serious crime by excess of prosecutorial zeal. It was not designed to merge “true" kidnappings into other crimes merely because the kidnappings were used to accomplish ultimate crimes of lesser or equal or greater gravity. Moreover, it is the rare kidnapping that is an end in itself; almost invariably there is another ultimate crime. [Emphasis added]
New Jersey was once quite expansive in its concept of kidnapping and ostensibly followed the Chessman/Wein rule. In State v. Dunlap, 61 N.J.Super. 582 (App.Div.1960), cert. den., 368 U.S. 903, 82 S.Ct. 181, 7 L.Ed.2d 97 (1961), the court cited Chessman in holding that kidnapping occurred when the defendants dragged the victim from her parked car into theirs and raped her while driving around the immediate vicinity of the abduction. The Court found no requirement that the victim be taken to any specific destination. 61 N.J.Super. at 589. The Law Division in State v. Kress, 105 N.J.Super. 514, 522 (1969), cited Chessman for the proposition that any movement satisfied the asportation requirement. In that case, however, the defendant bank robber used his victim as a shield, a distinguishing feature of that case and one specifically covered under section (a) of the current statute. In State v.. Ginardi, 111 N.J.Super. 435 (App. Div.1970), aff’d o.b., 57 N.J. 438 (1971), the defendant forced his way into the victims’ car, and while one victim drove, he raped the other. This atrocity continued for IV2 hours over “substantial distances,” 111 N.J.Super. at 440, a circumstance that obviated the necessity of the court deciding whether asportation for a slight distance incidental to the underlying crime would ever be enough to establish kidnapping. Id. at 441.
In the present case we are satisfied that the conviction for kidnapping was justified. Defendant’s act in forcing Mrs. Rayborn to leave her apartment at gun point and to drive him in her car about the countryside at night for about an hour, frequently threatening her with being shot, and in fact causing her to believe he intended to shoot her to the point where in her fright she did risk death to get out of the car, was not an integral part of the commission of the single crime of breaking and entering. The forcible detention could reasonably be considered a separate event deliberately undertaken and warranting separate prosecution. The asportation and detention were not incidental to the underlying crime, and they substantially increased the risk of harm to the victim beyond that normally inherent in breaking and entering. Under the circumstances, the jury was justified in finding guilt of the separate crime of kidnapping. [61 N.J. at 175-76 (emphasis added).]
The asportation issue arose again in
State v. Wooten,
135
N.J.Super.
6 (App.Div.1975),
aff’d by equally divided court,
73
N.J.
317 (1977). During a prison riot an inmate dragged a corrections officer 700 feet from one floor of the prison to another and then held him hostage for 24 hours. The court affirmed the kidnapping conviction because the kidnapping was the underlying crime, not incidental to another crime, and because the victim’s status as hostage obviated an analysis in terms of distance. 135
NJ.Super.
at 11-12,
As noted above, a literal application of the
Chessman/Wein
rule allowed for abusive prosecution. The drafters of the Model Penal Code, after which our criminal code is modeled, wrote, “[t]he criminologically non-significant circumstance that the victim was detained or moved incident to [an underlying] crime
In attempting to ascertain what our legislature envisioned as a “substantial distance” we can begin by noting what is not meant: a movement is not “substantial” simply because it facilitates a crime. As applied to this case, N.J.S.A. 2C:13-1 requires that the victim be moved a substantial distance and that the movement facilitate a crime. To interpret movement in terms of facilitating a crime would be tautological.
More sensible is the interpretation that views a “substantial distance” as one that isolates the victim and exposes him or her to an increased risk of harm. The drafters of the Model Penal Code focused on such isolation:
[I]f the offense is properly defined so as to be limited to substantial isolation of the victim from his normal environment, it reaches a form of terrifying and dangerous aggression not otherwise adequately punished * * *. A disposition to violence or theft in an actor who takes the trouble to set the scene so that he will have a relatively free hand to deal with his isolated victim is obviously more likely to lead to more dangerous consequences. [Draft, supra, at 15.]
Pennsylvania, which has also adopted the Model Penal Code’s language in its kidnapping statute, analyzed the phrase “substantial distance” in
Commonwealth v. Hughes,
264
Pa.Super.
118,
We believe our legislature adopted N.J.S.A. 2C:13-1 with the same intent. We arrive at this conclusion by weighing the potential for abusive prosecution against the terror of kidnapping and against the increased risk of harm to isolated victims. The above-mentioned comments from the drafters of the Model Penal Code buttress this conclusion. Any argument that our legislature intended to soften its treatment of kidnappers is foreclosed by reference to an early draft of 2C:13-1, subsequently rejected, that discussed a downgrading provision: “We propose to maximize the kidnapper’s incentive to return the victim aiive by making first degree penalties apply only when the victim is not ‘released alive in a safe place’ * * *. Certainly those formulations which authorize extreme penalties unless the victim is ‘liberated unharmed’ are unsatisfactory * * Commentary, supra, at 187 (emphasis added). As it turned out, of course, the legislature did ultimately authorize first degree sentences of 15 to 30 years unless the victim was released unharmed. N.J.S.A. 2C:13-l(e). It is evident that the legislature intended harsh treatment for kidnappers; it is further evident that by maximizing the kidnapper’s incentive to return the victim unharmed, the legislature realized that the risk of harm attendant upon isolation is the principal danger of the crime.
It would certainly be convenient to fix a linear distance for asportation. It would also be arbitrary and irrational, especially when juxtaposed with kidnappings from a home or business, removal from which has no requisite “substantial distance.” See N.J.S.A. 2C:13-l(b).
Applying those principles to this case, we are satisfied that a jury could have properly determined that the defendant removed his victim a substantial distance. By dragging her from the roadside to the pond’s edge behind a row of trees defendant isolated her and arguably obtained a “free hand to deal with his isolated victim.” Draft, supra at 15. After assaulting and threatening to drown L.F., defendant stripped her, thereby impeding her ability to follow him from the area and call attention to her plight. She was left beaten, exposed to the elements, and hidden from passersby.
The trial court’s charge to the jury, while not a paragon of clarity, allowed the jury fair consideration of these factors. It referred to the distance as being “relative” and instructed that the movement had to have some “bearing on the evil at hand.” In determining that the charge under scrutiny did not fall so far short of the test we have made explicit today as to amount to reversible error, we emphasize that a more punctilious charge in the future should explain “substantial distance” in terms of sufficient criminal significance that is more than incidental to the underlying crime and that substantially increases the risk of harm to the victim. The jury should be instructed that if the victim is removed only a slight distance from the vicinity where he or she is found and such movement does not create the isolation and increased risk of harm that are at the heart of N.J.S.A. 2C:13-l(b), then it should not convict.
Furthermore, we underscore the need for strict adherence by prosecutors and trial courts to the elements of kidnapping examined in this opinion. Today’s decision is not to be read as a
So much of the judgment of the Appellate Division as reversed the kidnapping conviction is reversed, and the judgment of conviction of kidnapping is hereby reinstated.
For reversal — Chief Justice WILENTZ, and Justices CLIFFORD, SCHREIBER, HANDLER, POLLOCK, O’HERN and GARIBALDI — 7.
For affirmance —None.