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State v. Downey

Decided: February 16, 1988.

STATE OF NEW JERSEY, PLAINTIFF,
v.
MORTON DOWNEY, JR., DEFENDANT



Humphreys, A.j.s.c.

Humphreys

This case involves the novel question of whether a physical assault should be considered de minimus and therefore subject to dismissal under the New Jersey de minimus statute N.J.S.A. 2C:2-11.*fn1 The defendant is the host of the "Morton Downey, Jr. Show" shown weekday evenings on Channel 9, in Secaucus, New Jersey. During the taping of a show the defendant struck a guest in the face. The guest filed a complaint, charging a simple assault, a disorderly persons offense.

The defendant moves to dismiss the complaint on the ground that the offense was de minimis. The defendant admits the striking but contends that it was trivial.

The court viewed a videotape of the show. The parties filed briefs and argued orally. After due consideration, the court finds that the offense charged is not trivial. Dismissal of this prosecution on a de minimus ground would run counter to basic principles of criminal law and the public interest. The motion for dismissal is denied.

I.

On December 9, 1987 the defendant was taping his weekly discussion program in the Channel 9 television studio in Secaucus. The topic was "The Catholic Church in America -- Is it Dead?" Four guest speakers had been invited. Philip Nobile, a former seminarian and columnist for the National Catholic Reporter; Monsignor William Smith, Dean of Saint Joseph's Seminary in Yonkers, New York; Reverend David Toolan, a

Jesuit Priest and editor of Commonweal Magazine; and Andrew Humm, a spokesperson for the Coalition for Lesbian and Gay Rights in New York. Mr. Nobile and Monsignor Smith were seated on the stage with the defendant. Father Toolan and Mr. Humm were at a podium located immediately in front of the audience and adjacent to the stage.

Philip Nobile and Andrew Humm were sharply critical of the Catholic Church. The defendant and Monsignor Smith defended the Church. The discussion was vitriolic. At one point the defendant left the stage and went to the podium at which Humm was standing. He and Humm engaged in a face to face confrontation and verbal battle. During the confrontation the defendant stated to Humm, "don't get any of your bodily fluids on me." A natural inference from that comment was that Humm had the disease known as AIDS. Both men then struggled for the hand microphone on the podium. Humm said "Fuck you." The defendant said "Don't you use that language on this show" and struck Humm in the face with a backward motion of his open hand.

The two men were separated by the defendant's security guards. The defendant and Father Toolan then had a physical and verbal encounter. The security guards took Mr. Humm and Father Toolan out of the studio.

The show continued but was not finished due to a bomb threat. Defendant represents that the show has not been and will not be shown.

Humm filed a disorderly persons complaint in the Secaucus Municipal Court charging assault. He also submitted a signed statement to the Secaucus Police Department.

The defendant moved to dismiss the complaint on the ground that Humm's supporting affidavit failed to establish bodily injury, an essential element of the offense. The Municipal Court Judge denied the motion. Thereafter the defendant brought this motion to dismiss the complaint under the de minimus statute. The State opposes the motion.


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