In State v. Zarrilli, another published Law Division case, the court considered the following factors in evaluating a de minimis application: (a) Defendant’s background, experience and character as indications of whether he or she knew or should have known the law was being violated; (b) Defendant’s knowledge of the consequences of the act; (c) The circumstances surrounding the offense; (d) The harm or evil caused or threatened; (e) The probable impact of the violation on the community; (f) The seriousness of the punishment; (g) Possible improper motives of the complainant or prosecutor; and (h) Any other information which may reveal the nature and degree of culpability.
In applying the Zarilli factors, the Court held that sex offenders subject to Megan’s Law registration requirements who reside in multiple locations are required by statute to register each address where they reside. Consequently, defendant was on notice that his failure to register his Mount Olive residence was unlawful. Furthermore, the Court rejected defendant’s premise that his behavior was neither a threat to the public nor created a threat of public harm because “he was in Mount Olive a very short amount of time.” In this de minimis application, the Court must assume that defendant resided in Mount Olive for twenty-three (23) days as charged. Moreover, at oral argument, his counsel conceded that defendant “cohabitated” with his girlfriend in Mount Olive. This portion of the Court’s opinion demonstrates how important it is for defense attorneys to choose their words when arguing motions. There are few things more persuasive to a higher court on appeal when a lower court can point to the defendant’s own attorney conceding material facts, even if the concession is made by mistake. Here, once the Law Division judge got the defense attorney to “concede” co-habitation, the judge pointed to the relevance of co-habitation pursuant to New Jersey Supreme Court precedent.
The Supreme Court has held: The ordinary understanding of cohabitation is based on those factors that make the relationship close and enduring and requires more than a common residence, although that is an important factor. Cohabitation involves an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage. These can include, but are not limited to, living together, intertwined finances such as joint bank accounts, sharing living expenses and household chores, and recognition of the relationship in the couple’s social and family circle.
Thus, the Law Division judge concluded that the defendant’s residence at the Mt. Olive address was not for a “short time,” and his failure to register is not de minimis. The statute’s registration requirements are intended to prevent the exact harm that occurred, to wit, a convicted sex offender residing in Mount Olive without the local community’s or police department’s awareness. Thus, the risk of harm to the community was significant. The other Zarilli factors are deemed inapplicable. Consequently, the Court concludes that defendant was required by statute to register in Mount Olive.
