St. Charles Borromeo Church was licensed by the Division of Alcoholic Beverage Control ("Division") to sell beer at a fair held on church premises. William Zarrilli, a 20-year-old college student attended the fair and took one sip from a cup of beer purchased by a friend. Another patron of the fair was the Director of the Division who observed Zarrilli's conduct and thereafter signed a municipal court complaint charging Zarrilli with underage consumption of alcoholic beverages on licensed premises, a disorderly offense. N.J.S.A. 33:1-81(b).
Zarrilli admitted the facts but moved before the municipal court for a dismissal of the complaint, pursuant to N.J.S.A. 2C:2-11, on the ground that the offense was de minimis. The motion was denied (necessarily, since only the assignment judge is permitted to honor such a motion); a conviction followed. Zarrilli was fined $100 and his driving privileges were revoked for six months, the minimum mandatory sentence under the statute. This appeal followed.
Zarrilli, in arguing here for a de minimis dismissal, points to his clean record, the very modest amount of beer consumed and the severity of the penalty. He is particularly disadvantaged by the six-month license suspension because he commutes to college.
A. The de minimis statute and case law.
N.J.S.A. 2C:2-11 provides in pertinent part:
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 [ sic ] 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. . . .
This provision has been addressed in three reported New Jersey cases:
(1) State v. Brown, 188 N.J. Super. 656 (Law Div.1983). Brown, a State prisoner, was indicted for possession of 65/100 of a gram of cocaine. The court, after reviewing de minimis decisions in other states, held:
Defendant's possession did "actually cause or threaten the harm or evil sought to be prevented by the law." Mere possession of cocaine is a high misdemeanor. Unlawful possession of it in any amount is a serious, not a trivial offense. It is particularly so when as in this case the possession is by a prisoner in a penal institution. Security and safety considerations in a prison atmosphere magnify the significance of the statutory violation. [at 669].
(2) State v. Smith, 195 N.J. Super. 468 (Law Div.1984). Smith was indicted for shoplifting: stealing 3 pieces of bubble gum. He moved for dismissal on de minimis grounds. The court, citing the statutory requirement that it have "regard to the nature of the conduct charged to constitute the offense and the nature of the attendant circumstances," held that "(e)very surrounding fact is entitled to consideration, not for its sympathetic import, but for such legitimate influence it may have in honoring the legislative intent." Id. at 473-474. It therefore considered the potential damage to defendant's engineering career, his public humiliation, substantial legal expenses, loss of reputation and the trivial amount stolen. Id. at 472, 474. It dismissed the indictment.
The court discussed deterrence as a factor to be considered but said that it was only a factor. It held:
The Legislature has by its enactment indicated its intention that trivial matters should be dismissed when the "condemnation of conviction" is not warranted. The use of the word condemnation is significant. It means reprobation or censure. The Legislature in recognition of the serious consequences which may attend a conviction has granted this dismissal option to avoid an injustice in a
case of technical but trivial guilt. The goal of a judge in exercising judicial discretion is a just result. He is to "use the authority reposed in him when the essential requisites for its exercise exist and the justice of the course is apparent." Cortese v. Cortese, 10 N.J. Super. 152, 158 (App.Div.1950). This is such a case. [ Id. at 477; citation omitted]
(3) State v. Nevens & Hawkins, 197 N.J. Super. 531 (Law Div.1984) (Separate cases consolidated for the purpose of contrasting ...