The De Minimis Statute (Part 1)

On April 12, 2019, a Law Division Assignment Judge decided the Camden County case of State v. Tyrell Johnson. The principal issue under N.J.S.A. 2C:2-11 was whether a guidance counselor was entitled to dismissal of a charge of endangering the welfare of a child for requesting to see a 17-year-old student’s breasts.

Judge Silverman Katz held in relevant: N.J.S.A. 2C:2-11(b) provides that dismissal is warranted where the defendant’s actions 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 of conviction. Defendant argues that he is entitled to a de minimis dismissal under subsection (b), because the conduct ascribed to him is so minor that assuming it did occur, it is outside the scope that the Legislature intended.

In the alternative, defendant argues that the alleged offense was to such a minor degree that he should not suffer further prosecution and be “branded with a felony conviction.” Specifically, defendant moves for dismissal because: (1) J.T. was seventeen years and eight months old at the time of the offense, and, so “was clearly not the type of victim envisioned by the Legislature when drafting N.J.S.A. 2C:24-4; and (2) the message at issue “is more in line with a joke than a sincere, legitimate request”–that is, it is “the 21st century version of a cat call”–and, accordingly, was neither “sexual conduct” nor that which would “debauch the morals of a child” within the meaning of the statute.

In opposition, the State argues that: (1) J.T. was a minor at the time of the offense and therefore a child under N.J.S.A. 2C:24-4(b)(1); and (2) defendant’s message was neither a joke nor a cat call because “an adult male–in a position of authority to the minor victim–sending a message to the victim seeking a photograph of her breasts is sexual conduct.”

With regard to sexual conduct, our criminal code makes an exception if the adult is less than four years older than the alleged victim. The record does not reveal the age of this defendant in relation to the seventeen-year-old alleged victim.