Cannel, Criminal Code Annotated, Comment 3 , N.J.S.A.
2C:1-13b.
VI. DE MINIMIS INFRACTIONS
A. Generally
N.J.S.A. 2C:2-11 provides the assignment judge
with the power to dismiss certain criminal prosecutions
if, after examining the nature of the conduct charged and
the nature of the attendant circumstances, he finds that
the defendant’s conduct:
a. was within a customary license or tolerance not
expressly negated by the victim nor inconsistent with the
law; or
b. did not actually cause or threaten the harm or evil
sought to be prevented or did so to an extent too trivial
to warrant the condemnation of conviction; or
c. presents other extenuating and mitigating factors
which lead to the conclusion that the legislature would
not have intended that such conduct be criminalized.
Prior to any such dismissal, the prosecutor must be
given notice and an opportunity to be heard. The
prosecutor also has a right to appeal any dismissal.
N.J.S.A. 2C:2-11c.
Statute permitting dismissal of prosecution of de
minimis infractions can be used to protect against
frivolous prosecutions under the harassment statute.
State v. Hoffman, 149 N.J. 564, 586-87 (1997).
Prosecution under disorderly persons statute for
distributing clean hypodermic needles in a needle
exchange program to combat the spread of the human-
immunodeficiency virus (HIV) was not absurd nor could
that conduct be deemed trivial in light of the zero
tolerance drug policy of the State so as to warrant
dismissal of the prosecution as a de minimis infraction.
State v. McCague, 314 N.J. Super. 254, 266-67 (App.
Div.), certif. denied, 157 N.J. 542 (1998); State v. Sorge,
249 N.J. Super. 144 (Law Div. 1991).
The zero tolerance drug policy of the State likewise
precluded dismissal of a prosecution for possession of
even a trace amount of cocaine as a de minimis infraction.
State v. Wells, 336 N.J. Super. 139 (Law Div. 2000).
Where the defendant was convicted of theft by
deception of under $200 as a result of padding his
expense account in an amount of at least $42.15, his
claimed de minimis defense was properly rejected. State
v. Stern, 197 N.J. Super. 49 (App. Div. 1984).After the defendant student was told by the principal
and vice-principal that he was to leave the school at the
conclusion of his last class, and after he was advised by a
teacher two times that he was not permitted to be in the
building at that particular hour, defendant’s claim of
“customary tolerance or license” under N.J.S.A. 2C:2-11
to warrant dismissal of the complaint against him for
defiant trespass was without merit. State v. Conk, 180
N.J. Super. 140 (App. Div. 1981).Politician’s conduct in striking his opponent’s chin
while waving a political flier during a heated political
confrontation was an “offensive touching” not
sufficiently serious to warrant criminal prosecution for
simple assault. State v. Cabana, 315 N.J. Super. 84 (Law
Div. 1997).A twenty-year-old college student was entitled to
dismissal of charges of underage consumption of alcohol
for taking a sip of beer from a friend’s glass while they
attended a church fair. The court framed the dispositive
issue as the degree of risk the defendant’s conduct posed
to society. State v. Zarrilli, 216 N.J. Super. 231 (Law
Div.), aff’d, 220 N.J. Super. 517 (App. Div. 1987).Disorderly persons offense of simple assault arising
from defendant’s direct, intentional physical attack on
another, specifically striking a guest on his television
show in the face with his open hand after advancing on
the guest and beginning a face-to-face verbal
confrontation, was not subject to dismissal as a de minimis
infraction, especially in light of the fundamental purpose
of the criminal law to insure public safety by deterring
criminal and antisocial conduct. State v. Downey, 242
N.J. Super. 367 (Law Div. 1988).Possession of drugs by a juvenile, specifically .08
grams of marijuana as residue in a pipe in his possession,
coupled with his possession of the pipe, which was drug
paraphernalia, and twelve cans of beer, posed a great risk
of harm to society to militate against dismissal of the drug
charge as a de minimis infraction. State v. Ziegler, 226 N.J.
Super. 504 (Law Div. 1988).Defendant casino patron who manipulated slot
machine handles to cause improper functioning to
increase his chances of winning was not entitle to
dismissal of charges of swindling and cheating at casino
gaming in violation of N.J.S.A. 5:12-113a as de minimis