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State v. Johnson

Superior Court of New Jersey, Law Division, Camden

April 12, 2019


          September 19, 2019

          Kaitlyn Compari, Assistant Prosecutor, for plaintiff (Mary Eva Colalillo, Camden County Prosecutor, attorney).

          Eric Liszewski, Assistant Deputy Public Defender, for defendant (Joseph E. Krakora, Public Defender, attorney).

          SILVERMAN KATZ, A.J.S.C.


         On March 7, 2018, J.T. (hereinafter "J.T."), [1] a senior at LEAP Academy University Charter School in Camden, New Jersey (hereinafter "LEAP Academy"), received an Instagram message from defendant, a middle school guidance counselor at the same school. That message asked J.T. to "[s]how me them huge rockets of your [sic] . . . ." Defendant was subsequently charged and indicted with third-degree endangering the welfare of a child under N.J.S.A. 2C:24-4(a)(1).

         Presently before the court is an application by defendant to dismiss this prosecution as de minimis pursuant to N.J.S.A. 2C:2-11(b) to (c). Defendant contends that this prosecution should be dismissed because: (1) J.T. was seventeen years and eight months old at the time that she received the message; (2) the message at issue, while broadly sexual in nature, "is more in line with a joke than a sincere, legitimate request" and, accordingly, is "the 21st century version of a cat call"; (3) this charge constitutes overzealous prosecution; (4) defendant's character and the context in which the offense occurred are relevant and weigh in favor of dismissing this action; and (5) should this application be denied, the impact of defendant's prosecution on the community would be minor.

         In opposition, the State contends that: (1) J.T. was a minor at the time of the offense and therefore was a child under N.J.S.A. 2C:24-4(a)(1); (2) defendant's message was neither a joke nor a cat call; (3) defendant's claim of overzealous prosecution is a "bald, unsupported assertion"; (4) defendant's reliance on character and context is unpersuasive because these factors are irrelevant; and (5) permitting the dismissal of this prosecution would harm society.

         At oral argument on the application, defendant argued that: (1) J.T.'s age at the time of the offense is relevant in determining whether to grant the instant application; and (2) pursuant to subsection (b) of N.J.S.A. 2C:2-11, the court should consider the severity of any resulting punishment when determining whether to dismiss a prosecution as de minimis. In response, the State argued that: (1) because J.T. was under the age of majority at the time she received the message, she was a "child" within the meaning of N.J.S.A. 2C:24-4(a)(1) and therefore was within the protected class; and (2) defendant's message did not constitute a cat call because he was in a position of authority as a guidance counselor at J.T.'s school.

         For the reasons articulated hereinbelow, this court denies defendant's motion for a de minimis dismissal.


         On April 17, 2018, defendant was charged pursuant to Warrant No. W-2018-002382-0408 with endangering the welfare of a child under N.J.S.A. 2C:24-4(a)(1), a third-degree offense. Thereafter, in July 2018, a Camden County Grand Jury returned Indictment No. 2620-11-18-I, presenting that defendant "did endanger the welfare of J.T. . . . by engaging in sexual conduct which would impair or debauch the morals of a child . . . by sending [her] messages asking her to send photographs of her breasts."[2]

         On February 15, 2019, seven months after the indictment, defendant filed a notice of motion for a de minimis dismissal under N.J.S.A. 2C:2-11, returnable before the Honorable Thomas J. Shusted, J.S.C., the judge assigned to hear the criminal matter. This application was thereafter docketed with the assignment judge, as required by N.J.S.A. 2C:2-11.[3] Although a return date of March 15, 2019, was scheduled, because of the untimely filing of the moving papers, the matter was adjourned to March 29, 2019. Defendant's request for oral argument was granted, and, on March 29, 2019, the court heard argument from the parties.


         "In considering whether an infraction is de minimis due to triviality, the judge must assume that the conduct charged actually occurred." State v. Evans, 340 N.J.Super. 244, 249 (App. Div. 2001). Accordingly, the court assumes, for purposes of the present application, that the following facts as alleged are true:

         On April 16, 2018, J.T. disclosed to her guidance counselor at LEAP Academy, Ms. Stephanie Depew, that she had received several messages from a male staff member at the same school. This staff member was later identified as defendant, a guidance counselor for middle school students. J.T. reported that on March 7, 2018, the seniors had a snow day and, therefore, did not have school. On that day, she received an Instagram[4] message from defendant under the username "Sun_of_a_gun, " asking her to "[s]how me them huge rockets of your [sic] on this snowy day." J.T. understood that "huge rockets" referred to her breasts.

         Prior to that interaction, J.T. had reported thinking that defendant was "cool, " but following the request that she show him her breasts, she blocked him on Instagram[5] She also reported that although she and other students would periodically eat lunch in defendant's office, she began to feel uncomfortable, and it became awkward.[6]

         Defendant never admitted sending the message to J.T. and alleged that his Instagram account had been hacked on numerous occasions. Specifically, defendant claimed that a friend of his whom he was seeing that day must have sent the message.[7] Nonetheless, defendant did admit that the message referencing J.T.'s "huge rockets" referred to her breasts.


         I. De Minimis Dismissal

         Pursuant to the de minimis statute, N.J.S.A. 2C:2-11, the assignment judge may dismiss a prosecution if, upon consideration of the "nature of the conduct charged" and the "nature of the attendant circumstances, " she 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 heard. The prosecutor shall have a right to appeal any such dismissal.
[N.J.S.A. 2C:2-11.]

         Subsection (a) is satisfied where the conduct in question is so trivial that it is unlikely to ever be prosecuted or to have motivated the Legislature to enact the law. See State v. Smith, 195 N.J.Super. 468, 476 (Law Div. 1984).[8]Smith provided, as a hypothetical example of such conduct, "stealing a penny dropped in the street." See ibid (citing State v. Hegyi, 185 N.J.Super. 229, 233 (Law Div. 1982)).

         Section (b) is intended to abort prosecutions of more serious import. Ibid.

         The de minimis statute "vests the assignment judge with discretion to dismiss certain charges to avoid an absurd application of the penal laws." State v. Evans, 340 N.J.Super. 244, 248 (App. Div. 2001). "The purpose of the de minimis statute is to provide assignment judges with discretion similar to that exercised by the police, prosecutors, and grand jurors who constantly make decisions as to whether it is appropriate to prosecute under certain circumstances." State v. Wells, 336 N.J.Super. 139, 141 (Law Div. 2000).

         There are few published decisions on this statute in New Jersey. Evans is the seminal authority on this issue.[9] In Evans, the Appellate Division reversed and remanded a Law Division determination that a shoplifting prosecution should be subject to a de minimis dismissal where the defendant had purchased $592.30 in merchandise but had failed to pay for a $12.90 hair bow. Id at 247-48. As relevant here, Evans found that "there is no adequate definition of triviality." Id at 252. Despite this, Evans adopted the holding of State v. Zarrilli[10] that the most important factor in determining whether an offense is trivial is "the risk of harm to society [caused by the] defendant's conduct." Id at 253. Some subordinate factors relevant to determining the risk of harm to society may include:

(a) The circumstances surrounding the commission of the offense;
(b) The existence of contraband;
(c) The amount and value of the property involved;
(d) The use or threat of violence; and
(e) The use of weapons.

Evans, 340 N.J.Super. at 250 (citing Zarrilli, 216 N.J.Super. at 240).

         However, as Evans recognized, these factors are not relevant in all cases, and the absence thereof need not negate the seriousness of an offense. See Evans, 340 N.J.Super. at 252 ("While those [subordinate] factors may indeed be relevant in certain circumstances, they are generally unlikely in typical shoplifting cases and their absence hardly indicates triviality.").

         Although there are several published Law Division decisions on this issue, they, too, are rare.[11] Despite this, both the Appellate and Law Division cases carry a common theme: the preeminent factor in determining whether to dismiss a prosecution as de minimis is whether the conduct in question caused the harm sought to be prevented by the statute underlying the defendant's charge. See State v. Cabana, 315 N.J.Super. at 89-90 (Law Div. 1997) (dismissing a simple assault charge as de minimis where a politician incidentally struck another politician during a heated confrontation during a political function); Zarrilli, 216 N.J.Super. at 240 (finding that the consumption of a single sip of beer in a cup purchased by a friend at a church function "was so minimal as not to warrant the condemnation of a conviction"); State v. Nevens, 197 N.J.Super. 531, 538-39 (Law Div. 1984) (finding that the defendant's theft of several pieces of fruit from a buffet was insufficient to warrant prosecution); Smith, 195 N.J.Super. at 472-73 (dismissing a shoplifting prosecution of three pieces of bubble gum as de minimis, based on the amount stolen, the fact that the defendant had no criminal record, the public embarrassment he had already suffered, the damage to his reputation as an aspiring engineer, and the legal expenses he had already incurred).

         Other factors that may be relevant in determining whether to dismiss a prosecution as de minimis include:

(1) The defendant's background, experience, and character as indications of whether he or she knew or should have known ...

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