Defendant contends the charge that he stole three pieces of bubble gum has been blown out of proportion. "Truly trivial cases are rarely prosecuted." State v. Hegyi, 185 N.J. Super. 229, 233 (Law Div.1982). The issue of whether this case is an exception is a sticky one which invites analysis.
Defendant is charged with shoplifting (N.J.S.A. 2C:20-11) by "concealing merchandise of three (3) pieces of bazooka bubble gum valued at $.15 with the intention of depriving the merchant of the full retail value (thereof)." He has moved before the assignment judge for a dismissal of the prosecution under N.J.S.A. 2C:2-11(b), entitled "De minimis infractions," which reads:
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:
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.
Defendant is enrolled as a fulltime student at Trenton State College where he is pursuing a degree in electrical engineering. On March 8, 1984, he entered a "7-11" grocery store. He first selected three pieces of bubble gum and slipped them into his pocket. After selecting his other purchases he went to the register at the checkout counter where he was apprehended by the store manager. The police were summoned and he was arrested and charged on the complaint which was signed by the manager. The record is unclear as to whether he was accused by the manager before paying for his purchases. He had not yet left the store premises.
In his certification in support of the motion defendant further contends that he placed the bubble gum in his pocket "for convenience," as he was carrying a large AM-FM portable radio weighing 10 pounds and intended to purchase other items. The offense charged under N.J.S.A. 2C:20-11(b)(2) is complete upon concealment of the merchandise purposely with the proscribed intention. Since defendant's allegation in this regard is contrary to the charge in the complaint it must be disregarded. This motion is to be decided on the basis of the State's contention regarding the commission of the offense and uncontroverted facts of record. A defendant's innocence may not be adjudicated by motion filed pursuant to the statute. State v. Brown, 188 N.J. Super. 656, 671 (Law Div.1983); but see State v. Hegyi, supra, and State v. Evans, 193 N.J. Super. 560 (Law Div.1984) to the contrary.
Defendant acknowledges the other sections of the statute (that the conduct was within a customary license or tolerance, or that it presents other extenuations not envisaged by the Legislature) are inapplicable. He further concedes that he has no recourse under the other criterion of section (b) as the conduct charged did "actually cause or threaten the harm or evil sought to be prevented by the law defining the offense." His sole contention is that it "did so only to an extent too trivial to warrant the condemnation of conviction." In short, he asserts that his conduct was de minimis within the meaning of the statute.*fn1
The Legislature has committed the resolution of this question to the discretion of the assignment judge. State v. Brown, supra at 672-674. The intention of the Legislature to do so is highlighted by the use of the word "may" rather than "shall" in the statute. This is a change from the language of
the Model Penal Code on which the statute was based. However, this "discretion is not an arbitrary or personal (one) to be exercised according to the whim or caprice of the individual judge." McFeely v. Pension Comm'rs of Hoboken, 1 N.J. 212, 215 (1948), nor may it be arbitrary, vague or fanciful. State v. Standard Oil, 5 N.J. 281, 308 (1950), aff'd 341 U.S. 428, 71 S. Ct. 822, 95 L. Ed. 1078 (1950). Judicial discretion means sound discretion guided by established principles of law, Beronio v. Pension Comm. of Hoboken, 130 N.J.L. 620, 623 (E. & A.1943), which the court has a duty to follow. State v. Hunter, 4 N.J. Super. 531, 536 (App.Div.1949), on remand 12 N.J. Super. 128 (App.Div.1951).
While "sympathetic considerations play no part in a determination under" the de minimis statute, State v. Brown, supra 188 N.J. Super. at 670, an objective consideration of surrounding circumstances is authorized. "Judicial discretion . . . takes into account . . . the particular circumstances of the case before the court." Higgins v. Polk, 14 N.J. 490, 493 (1954). Defendant has no prior history of arrest or conviction. Were the contrary true that fact would militate against dismissal of the complaint. His certification evidences the serious consequences to him which a conviction would entail. Upon graduation from college he will seek a career in the electronics field. Defense contractors for the Federal government are major employers of graduate engineers. Security clearance is often a requisite to employment and a record of conviction in this case could cause career problems for him for years to come. He is an industrious young man. He engages in part-time employment while attending classes and fulltime employment in the summer to assist in the payment of his educational costs. And he has suffered substantial detriment in his personal life from the ...