Superior Court of New Jersey, Law Division, Camden
September 19, 2019
Kaitlyn Compari, Assistant Prosecutor, for plaintiff (Mary
Eva Colalillo, Camden County Prosecutor, attorney).
Liszewski, Assistant Deputy Public Defender, for defendant
(Joseph E. Krakora, Public Defender, attorney).
SILVERMAN KATZ, A.J.S.C.
March 7, 2018, J.T. (hereinafter "J.T."),
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
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.
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.
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.
reasons articulated hereinbelow, this court denies
defendant's motion for a de minimis dismissal.
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."
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. 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.
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:
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 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
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 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.
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. Nonetheless,
defendant did admit that the message referencing J.T.'s
"huge rockets" referred to her breasts.
De Minimis Dismissal
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
(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
(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.
(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).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)).
(b) is intended to abort prosecutions of more serious import.
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).
are few published decisions on this statute in New Jersey.
Evans is the seminal authority on this
issue. 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 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
(a) The circumstances surrounding the commission of the
(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).
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.").
there are several published Law Division decisions on this
issue, they, too, are rare. 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).
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