infractions. The fact that the defendant was informed on
several occasions that the method he was using was illegal
precluded a finding that his conduct was “within a
customary license or tolerance,” and his conduct clearly
subverted the legislative attempt in enacting the statute
to maintain integrity and honesty of the operation of the
casino gaming industry. State v. Hawkins, 197 N.J.
Super. 531, 536-39 (Law Div. 1984).
A buffet patron who paid for the buffet meal but who
was charged with theft for leaving the restaurant with two
bananas, an orange, an apple, and a pear, was entitled to
dismissal of the charges as de minimis. In reaching this
conclusion, the court relied on the facts that there were
no signs posted indicating that food could not be taken
out of the restaurant, there was evidence that the patron
may have been driven out of the restaurant by the
harassment of the employees before he was ready to leave,
and defendant took the fruit as his dessert to finish
outside the restaurant. State v. Nevens, 197 N.J. Super.
531, 532-36 (Law. Div. 1984).
In determining that the defendant, who was charged
with shoplifting three pieces of bubble gum, was entitled
to dismissal of the charges as de minimis infractions, the
court was authorized to engage in an objective
consideration of all surrounding circumstances, such as
the defendant’s lack of any prior history of arrest or
conviction, the detrimental effect of the notoriety of his
arrest, defendant’s industrious pursuit of full- and part-
time employment to pay for his education, and the
potential career problems that would result from a
criminal conviction. State v. Smith, 195 N.J. Super. 468
(Law Div. 1984).
The defendant, a state prisoner, was not entitled to
dismissal of charges resulting from his possession of .65
grams of cocaine as a de minimis offense since his conduct
caused or threatened the harm or evil which the law
proscribing possession of cocaine sought to avoid. The
court rejected defendant’s contention that the
circumstances which resulted in his imprisonment
presented “such other extenuations that it cannot
reasonably be regarded as envisaged by the Legislature in
forbidding the offense.” State v Brown, 188 N.J. Super.
229 (Law Div. 1983).
The defendant, who submitted false affidavits to the
prosecutor’s office regarding misconduct of a local
government official and was indicted for filing false
reports, fabricating physical evidence, and tampering
with witnesses and informants, was not entitled to
dismissal of the charges as de minimis infractions. State v.
Hegyi, 185 N.J. Super. 229 (Law Div. 1982).B. Procedural Issues and Burden of Proof
Although the de minimis statute authorizes dismissal
of a prosecution, it does not authorize the assignment
judge to dismiss a conviction. State v. Zahl, 259 N.J.
Super. 372 (Law Div. 1992).Statute permitting dismissal of a charge as a de
minimis infraction is not applicable to a juvenile
delinquency proceeding. State v. I.B., 227 N.J. Super.
362 (App. Div. 1988). But see State v. Ziegler, 226 N.J.
Super. 504 (Law Div. 1988).There is a split in authority as to whether evidence
concerning a defendant’s innocence may be considered in
motions made pursuant to N.J.S.A. 2C:2-11. In State v.
Brown, 188 N.J. Super. 656, 675 (Law Div. 1983), the
court noted that the statute authorizes a review of the
conduct charged and the nature of the attendant
circumstances but does not permit the defendant to
assert a version contrary to the conduct charged in the
complaint or indictment. See also State v. Cabana, 315
N.J. Super. 84, 86 (Law Div. 1997); State v. Downey, 242
N.J. Super. 367, 371 (Law Div. 1988); State v. Zarrilli,
216 N.J. Super. 231, 236 (Law Div.), aff’d, 220 N.J.
Super. 517 (App. Div. 1987); State v. Nevens, 197 N.J.
Super. 531, 538 (Law Div. 1984); State v. Smith, 195 N.J.
Super. 468, 471 (Law Div. 1984). But see State v. Evans,
193 N.J. Super. 560, 566 (Law Div. 1984); State v. Hegyi,
185 N.J. Super. 229, 232 (Law Div. 1982).In State v. Evans, 193 N.J. Super. 560, 563-66 (Law
Div. 1984) and State v. Hegyi, 185 N.J. Super. 229, 230-
33 (Law Div. 1982), the courts permitted the defendants
to move for summary judgment under the de minimis
statute, concluding that N.J.S.A. 2C:2-11 introduced
summary judgment procedures to the criminal law.There is also conflict as to whether application of the
statute is discretionary or mandatory with the
assignment judge. See State v. Brown, 188 N.J. Super.
656, 672-74 (Law Div. 1983) and State v. Smith, 195
N.J. Super. 468, 471-72 (Law Div. 1984) (discretionary)
and State v. Evans, 193 N.J. Super. 560, 563-64 (Law
Div. 1984) (mandatory).