several offenses in separate counts if the offenses are of
similar character, or if they are based on the same act or
transaction or if they are connected together by a
common scheme or plan. R. 3:7-6. A single crime of
conspiracy may include several unlawful objects of that
conspiracy as long as the acts relate to a single transaction
or a common plan. State v. New Jersey Trade Waste Ass’n,
96 N.J. at 21-27. Similarly, multiple thefts committed
pursuant to one scheme or course of conduct may be
included in separate counts within the same indictment.
State v. Childs, 242 N.J. Super. 121, 131-33 (App. Div.),
certif. denied, 127 N.J. 321 (1990). Although separate
and distinct offenses cannot be charged in the same count
in an indictment, counts may include more than one
issue when the statute addresses several things
disjunctively. See State v. McDougald, 120 N.J. at 562-
64.
D. Due Process (See also, DUE PROCESS in this
Digest)
The prosecution of defendant for a felony
(manslaughter) following the invocation of his statutory
right to appeal for a trial de novo of the misdemeanor
convictions which are based on the same conduct
involved in the manslaughter prosecution violates the
due process clause. Thigpen v. Roberts, 468 U.S. 27, 28-
32 (1984).
In State v. Jones, 183 N.J. Super. 172, 181-84 (App.
Div. 1982), due process did not bar an indictment
charging rape following the dismissal of a prior
indictment charging carnal abuse, which was dismissed
because that particular offense had been abrogated by the
Code. A second indictment may be sought following the
dismissal or quashing of the first prior to, at the very least,
the impaneling the jury.
E. De Minimis
An indictment charging defendant with shoplifting
by stealing three pieces of bubble gum was subject to
dismissal pursuant to N.J.S.A. 2C:2-11, which allows
dismissal of a prosecution based on defendant’s de
minimis conduct. State v. Smith, 195 N.J. Super. 468,
470-77 (Law Div. 1984). The complaint upon which
defendant was convicted of theft for taking five pieces of
fruit from a buffet restaurant after paying for the meal was
subject to dismissal as a de minimis infraction. State v.
Nevens, 197 N.J. Super. 531, 534-37 (App. Div. 1984).
Pursuant to N.J.S.A. 2C:2-11b, the de minimis
statute, the summary judgment procedure is available to
criminal defendant even for a serious offense (as opposed
to trivial charges) where defendant “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 and conviction... .” In determining whether to dismiss, the court may
consider the “attendant circumstances”, i.e., the facts
surrounding the charge and not necessarily set forth in
the indictment. State v. Evans, 193 N.J. Super. 560, 565-
67 (Law Div. 1984).
In State v. Zarrilli, 216 N.J. Super. 231, 236-40 (Law
Div.), aff’d, 220 N.J. Super. 517 (App. Div. 1987), the
complaint charging defendant, a 20 year-old college
student, with underage consumption of alcoholic
beverages on licensed premises (a disorderly offense) was
subject to dismissal pursuant to N.J.S.A. 2C:2-11b.
Defendant’s admission of actually performing the
prohibited act did not resolve the crucial issue of whether
the conduct caused or threatened the harm “only to an
extent too trivial to warrant the condemnation of
conviction.” The de minimis statute is applicable to all
prohibited conduct, not just disorderly offenses, and
defendant’s knowledge that the conduct is prohibited is
not a relevant consideration. Nor does the purpose of the
deterrence measure triviality. Thus, the statute permits
dismissal of prosecutions if society as a whole will be
benefitted and protected. Factors to be considered
include the circumstances surrounding the commission
of the offense, the existence of contraband, the amount
and value of property involved, the use or threat of
violence, and the use of weapons. See also State v. Ziegler,
226 N.J. Super. 504, 505-06 (Law Div. 1988).N.J.S.A. 2C:2-11 does not apply to juvenile
delinquency proceedings. State v. I.B., 227 N.J. Super.
362, 365-67 (App. Div. 1988).IV. JOINDER AND SEVERANCE (See also,
JOINDER AND SEVERANCE, this Digest)
N.J.S.A. 2C:1-8b and R. 3:15-1(b) provide that
defendants shall not be subject to separate trials for
multiple criminal offenses based on the same conduct or
arising from the same episode if the offenses are known to
the prosecutor at the time of the first trial and if they are
within the jurisdiction and venue of a single court. See
also State v. Gregory, 66 N.J. 510, 521-23 (1975). This
“single trial” requirement frequently arises in situations
where merger and double jeopardy issues present
themselves, but as set forth in the Code and the court
rules is broader and therefore applies in situations where
neither merger nor double jeopardy issues surface. See