[193 NJSuper Page 562] In this case, defendant moved for dismissal of indictments against him, relying upon the summary judgment procedure described in State v. Hegyi, 185 N.J. Super. 229 (Law Div.1982). The prosecutor, arguing against the motion, relied upon State v. Brown, 188 N.J. Super. 656 (Law Div.1983), which concluded that no summary judgment procedure was available to a defendant in a criminal action. He requested a reconsideration of Hegyi in the light of Brown. This court, not being persuaded by the reasoning in Brown, entertained the motion but held that a genuine issue of fact existed requiring its denial. This opinion examines Brown and sets forth the court's reasons for its disagreement with the conclusions there.
A. The Use of "May"; Summary Judgment in Discretionary Matters
N.J.S.A. 2C:2-11, the so-called de minimis statute, 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.
Hegyi held that the summary judgment motion was authorized by paragraph (b) of the statute:
It provides that the prosecution must be dismissed if the defendant's conduct '[d]id not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense. . . .' This language invites a factual analysis. Here, for example, if the facts do not show that the defendant submitted false reports or tampered with witnesses or fabricated physical evidence, it could not be said that his conduct caused or threatened the harm or evil which the law sought to prevent. [185 N.J. Super. at 232]
Brown points to the opening language of the statute, namely that the "assignment judge may dismiss a prosecution" (emphasis supplied), stressing the fact that dismissal is discretionary. The opinion then states that "[the] discretion to grant or deny is the antithesis of the function of a judge in deciding a motion for summary judgment." Brown therefore disagrees with Hegyi's statement that the court " must dismiss" (emphasis supplied), if the prosecutor has no facts with which to support the indictment and concludes that the use of the summary judgment procedure was not intended by the Legislature. There are two answers to this argument: (1) the use of the word "may" does not always invite discretionary action and
should not be so read here; and (2) the existence of discretion does not prevent use of the ...