[197 NJSuper Page 532] The above captioned matters come before this court on application for dismissal pursuant to N.J.S.A. 2C:2-11, the de minimis
statute. The first action, State v. Nevens, represents an appeal from a determination of guilt in Atlantic City Municipal Court and is illustrative of a situation in which N.J.S.A. 2C:2-11 is applicable. The second action, State v. Pair and Hawkins, is before the court on motion to dismiss an indictment and represents a case in which the provisions of N.J.S.A. 2C:2-11 are not applicable. The court has elected to treat both cases in a single opinion in order to highlight the difference between a de minimis infraction and a non-de minimis infraction.
Nevens was convicted of theft for taking two bananas, an orange, an apple, and a pear from the Cornucopia Buffet at the Golden Nugget Casino/Hotel. Nevens appeals his conviction and the imposition of a $25.00 fine on the ground that the infraction was de minimis and thus within the purview of N.J.S.A. 2C:2-11.
Nevens' conviction was based on the following facts. Nevens and his wife were eating lunch at the Cornucopia Buffet in the Golden Nugget on November 16, 1983. At one point during the meal Nevens left his wife at their table. During his absence, an employee of Golden Nugget approached Nevens' wife and informed her that she could not take any food with her when she left the restaurant. When Nevens returned to the table his wife informed him that she had been startled by the employee. Nevens contends that his wife failed to inform him that she had been instructed not to take any food when she left the dining room. Nevens states that he and his wife were continually harassed during their meal by employees at the Cornucopia Buffet and that a hostile verbal exchange between Nevens and one employee occurred. It is alleged that as a result of this harassment Nevens and his wife decided to leave the buffet with the fruit and eat it outside. As he was leaving, Nevens paid the cashier for his meal and his wife's meal. A security guard attempted to detain Nevens and his wife as they left but Nevens continued to leave the hotel and was ultimately stopped
by security out on the boardwalk. At that point, Nevens demanded that the Atlantic City police be called before he would be searched. Contrary to claims by one employee that Nevens had been wrapping up danish and rolls, Nevens only possessed fruit when he was searched. Nevens was arrested and charged with theft under N.J.S.A. 2C:20-3 (theft by taking possession of certain movable property). Nevens was found guilty in Atlantic City Municipal Court and this appeal ensued.
After reviewing the transcript in this matter, the court concludes that the complaint against Nevens should be dismissed.
N.J.S.A. 2C:2-11 provides:
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 ...