DELMAR MAN GUILTY OF STEALING NEARLY $1M

CAROL DE MARE Staff writer
Section: CAPITAL REGION,  Page: B1

Date: Saturday, May 15, 1993

A Delmar man faces a maximum of 10 to 20 years in prison for his jury conviction Friday of swindling four acquaintances out of nearly $1 million. The verdict against Frank W. Kindlon, 50, of 31 Gardner Terrace was announced shortly before 2 p.m. in the second day of the jury's deliberations.


County Judge John G. Turner Jr. immediately revoked Kindlon's $40,000 bail and sent him to the county jail to await sentencing on June 16. Rusty Kindlon, his wife, and other family members cried as he was led away.


"It's an uncomfortable situation," Chief Assistant District Attorney Lawrence P. Wiest said. "I'm not really happy. It's just the end of a very bad experience for an awful lot of people ... I'm happy for the victims that at least their stories were told."


Assistant Public Defender Raymond A. Kelly Jr. said he would appeal on grounds the judge refused to allow him to offer a defense that his client was not responsible by reason of mental disease or defect -- that he is a "pathological gambler."


"He was incapable due to a gambling disease to formulate an intent to permanently deprive" the victims of the money he owed them, Kelly said.


Kindlon's weakness was OTB and Lotto, Kelly said. Had he been allowed to offer the defense, he would have called mental health experts to testify on Kindlon's behalf, the defense lawyer said.


In the alternative, Kelly advanced a defense that the case should have been handled as a civil matter -- that it was a case of Kindlon not being able to pay his debts.


Wiest said the gambling defense is not recognized by courts in New York state as a mental disease and knows of no state where the defense is allowed.


The jury of seven women and five men found Kindlon guilty of six counts of second-degree grand larceny and one count of third-degree grand larceny.


Evidence at the four-week trial showed that Kindlon extorted up to $400,000 from James and Joan Tabone between the fall of 1987 and the spring of 1989; $359,000 from Anthony J. Robilotto Jr. from 1986 to 1992; $150,000 from Margaret Duncan Wagar between January and November 1991; and $25,000 from Chimanbhai D. Patel in December 1991.


Kindlon, who has prior felony convictions, was arrested in January 1992 after a family member of one of the victims went to the State Police.


Kelly said his client was sorry for what he did, but victim Joan Tabone said Kindlon has never expressed remorse to her.


"I'm glad that justice has been done, and I know he's in a place where he can't hurt anyone else," said Tabone, 58, of Albany. She said she hates to see anyone go to prison, but Kindlon "destroyed a lot of lives."


Her testimony was one of the most emotional as she told how her husband, a longtime friend of Kindlon, became so despondent in May 1989 that he doused himself with gasoline and set his body on fire. She said Friday that she blames Kindlon for her husband's suicide.


Other testimony showed that Kindlon instilled a fear in the victims by telling them they were under surveillance and listening devices had been placed in their homes and cars for their own protection, and that there were court-imposed gag orders prohibiting them from discussing the case, none of which was true.


With three of his victims, after an initial loan, Kindlon got more and more money from them on the subterfuge that he had to pay taxes to the Internal Revenue Service or fines to keep a fictitious court action going so that eventually he would receive a large amount of money and they would get back their initial loan.