This opinion addresses the question of whether the de minimis statute, N.J.S.A. 2C:2-11, has brought summary judgment procedures to the criminal law. I conclude that it has.
Defendant Frank P. Hegyi allegedly obtained false affidavits stating that the mayor of Fieldsboro, in Burlington County, used public employees for private purposes, a crime. These affidavits were presented to the Burlington County Prosecutor for action. On the next day Hegyi called him with the advice that his office should not "waste its time" on the matter; that the persons who signed the affidavits were confused and apparently had not performed any private services for the mayor. The prosecutor, believing that knowingly false affidavits had been delivered to him, presented the matter to the grand jury. It returned three indictments against Hegyi, charging him with violating the following statutes: N.J.S.A. 2C:28-4(a) (false reports to law enforcement authorities); N.J.S.A. 2C:28-5(a)(1) (tampering with witnesses and informants); N.J.S.A. 2C:28-6(2) (fabricating physical evidence).
Defendant now moves before the assignment judge for a dismissal of the prosecution under N.J.S.A. 2C:2-11, which provides, in full as follows:
The assignment judge may dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it finds that the defendant's conduct:
a. Was within a customary license or tolerance, neither expressly negated by the person whose interest was infringed nor inconsistent with the purpose of the law defining the offense;
b. Did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or
c. Presents such other extenuations that it cannot reasonably be regarded as envisaged by the Legislature in forbidding the offense. The assignment judge shall not dismiss a prosecution under this section without giving the prosecutor notice and an opportunity to be heard. The prosecutor shall have a right to appeal any such dismissal.
Incorporated in Hegyi's motion to dismiss are copies of the affidavits in question, statements of witnesses and copies of the prosecutor's relevant records, obtained through discovery. Also included is a transcript of the recorded statement taken by an investigator employed by defense counsel and delivered to the prosecutor pursuant to the rules requiring reciprocal discovery. Defendant claims that these documents reflect all facts in the possession of the State; the prosecutor does not argue otherwise and has not supplemented the record.
For present purposes defendant concedes that all of the information in the material obtained from the prosecutor through discovery constitutes admissible evidence and that all of it may be considered in a light most favorable to the State. He then argues that if the matter is tried, this evidence is not sufficient to withstand a motion for acquittal made at the end of the State's case and, therefore, that the prosecution should be dismissed. The prosecutor, on the other hand, contends that summary judgment procedures are not available in criminal cases and that, in any event, the facts contained in the record supporting the motion are sufficient to raise questions for a jury.
The purpose of the de minimis statute is to provide assignment judges with discretion similar to that exercised by the police, prosecutors and grand jurors who constantly make decisions as to whether it is appropriate to prosecute a particular activity which is claimed to be criminal. Report of the New Jersey Criminal Law Revision Commission, The New Jersey Penal Code: Commentary 74 (1971). ...