In State v. Halloran, decided on August 24, 2014, and approved for publication on July 29, 2016, the Superior Court of Morris County was called upon to decide a motion to dismiss a charge under our criminal code’s “De Minimis Infraction” statute. The charge was that the defendant, a registered sex offender, registered his primary residence as required by law, but failed to register his secondary residence. Note that this is a rare instance of a Superior Court Opinion being approved for publication since typically only Appellate Division and Supreme Court opinions are published. From time to time, however, Superior Court or Law Division cases get published when there are no higher court opinions that address the issue at hand. Note further that like an “unpublished” Appellate Division case, “Law Division” opinions are considered persuasive, but not binding on any other courts should another court choose to decide the issue differently in the future.
For purposes of a de minimis motion, the Assignment Judge must assume that the conduct charged actually took place and evaluate only whether the offense is too trivial to warrant prosecution On that premise, the judge may assert that this conduct, which technically establishes the commission of a crime by defendant, was a trivial matter or did not cause or threaten the result that the criminal statute is designed to prevent. The question thus becomes what is the risk of harm to which society is exposed by defendant’s conduct. If the Assignment Judge finds that defendant’s conduct so charged was insufficient to constitute an offense, he may dismiss the indictment.