On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County.
The State appeals from the dismissal of a complaint charging juvenile delinquency by a judge of the Chancery Division-Family Part, on the ground that the infraction was de minimis pursuant to N.J.S.A. 2C:2-11. We reverse, reinstate the complaint and remand for further proceedings.
On October 6, 1987, a physical education teacher observed a strong odor of marijuana emanating from the boys' lavatory in a high school building. After waiting outside the lavatory door and not observing anyone enter or leave, the teacher entered and found defendant inside one of the stalls. Looking over the
top of the stall, the teacher observed I.B. smoking what appeared to be a cigarette which emitted a strong odor of marijuana. A Marlboro cigarette box was found on I.B.'s person when he was searched by the school principal in a nurse's office in which residue of marijuana was found. Analysis of the residue by a forensic chemist revealed .08 grams of marijuana.
A complaint was filed charging I.B. as a juvenile delinquent under N.J.S.A. 2A:4A-23, by having in his possession under 50 grams of marijuana in violation of N.J.S.A. 2C:35-10a(4). Prior to the trial on February 2, 1988, defendant's counsel made a motion to dismiss the complaint pursuant to N.J.S.A. 2C:2-11 on the ground that it was a de minimis infraction.*fn1 The trial judge granted the motion and dismissed the complaint on February 2, 1988. An application was neither made to nor considered by the assignment judge of the vicinage. Although the trial judge was also acting assignment judge, he expressly recognized that the statute limits the power to dismiss on this ground to the assignment judge. He dismissed the complaint in his role as presiding judge of the Family Part, Juvenile, not as acting assignment judge.
On this appeal, the State makes the following legal arguments:
POINT I THE ASSIGNMENT JUDGE IS GIVEN THE AUTHORITY OF DISMISSING A PROSECUTION PURSUANT TO N.J.S.A. 2C:2-11 AND THEREFORE THE MOTION IN THE INSTANT CASE SHOULD NOT HAVE BEEN HEARD AND DECIDED BY THE SUPERIOR COURT JUDGE PRESIDING OVER THE JUVENILE HEARING.
POINT II THE PROSECUTION OF THE DEFENDANT IN THE PRESENT CASE SHOULD NOT HAVE BEEN DISMISSED PURSUANT TO N.J.S.A. 2C:2-11 BECAUSE IT DID CAUSE OR THREATEN THE HARM OR EVIL SOUGHT TO BE PREVENTED BY THE LAW DEFINING THE OFFENSE AND IT DID NOT DO SO TO AN EXTENT TOO TRIVIAL TO WARRANT A CONVICTION.
When the issue was raised at the hearing as to whether the trial judge, as presiding judge of the Family Part-Juvenile
could exercise the power to dismiss a de minimis ...