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State v. Ziegler

Decided: May 16, 1988.

STATE OF NEW JERSEY
v.
BRIAN J. ZIEGLER



Haines, A.j.s.c.

Haines

Brian J. Ziegler is a juvenile. On September 5, 1987, he was arrested with another juvenile and charged with possession of marijuana under 50 grams, possession of CDS paraphernalia and possession of alcohol. The marijuana charge was based on the discovery of .08 grams of that substance as residue left in a pipe carried in Ziegler's pocket. The alcohol charge involved possession of 12 cans of beer, one of which was open. The paraphernalia was the pipe. Ziegler now moves to dismiss the marijuana charge as de minimis.

N.J.S.A. 2C:2-11 provides in pertinent part as follows:

The Assignment Judge may dismiss the 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 a condemnation of conviction.

In State v. Zarrilli, 216 N.J. Super. 231 (Law Div.1987), aff'd, 220 N.J. Super. 517 (App.Div.1987), the Law Division held that ". . . it is public risk that determines what is trivial. The one question to be asked and answered in response to the de minimis motion is therefore: what is the risk of harm to which society is exposed by defendant's conduct?" 216 N.J. Super. at 239. Subordinate factors contributing to the answer were listed as:

(a) The circumstances surrounding the commission of the offense . . . [which] may reveal an unacceptable social risk.

(b) The existence of contraband.

(c) The amount and value of property involved.

(d) The use of threats or violence.

(e) The use of weapons. [ Id. at 240].

The State argues that the de minimis statute does not apply to a juvenile offense. This court concludes that it does. The statute is part of the Code of Criminal Justice. It permits the dismissal of a "prosecution" and refers to an "offense" and a "conviction." Brian J. Ziegler is charged under ...


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