The Camden County Assignment Judge continued in relevant part:
- “The Average Child in the Community” Standard
Under the “average child” analysis, defendant’s behavior falls within the required finding. The text message sent would impair or debauch the morals of an average child in the community. Defendant’s attempt to trivialize the gravity of his message by labeling it a “cat call” is unpersuasive. As stated hereinabove, defendant, an adult, sent a child a message for the sole purpose of obtaining a photograph of her breasts. See supra at p. 18. A message from an adult guidance counselor at the same school as the student, seeking a partially nude photograph of a child, would impair or debauch the morals of an average seventeen-year-old in the community.
c. Dismissal Not Warranted under Subsection (b)
Subsection (b) of N.J.S.A. 2C:2-11 provides that a de minimis dismissal may be warranted where, in contrast to here, the defendant’s conduct 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. In short, this court must examine “the risk of harm to society caused by the defendant’s conduct.” For the reasons articulated hereinabove, namely that defendant’s message constituted sexual conduct within the meaning of N.J.S.A.2C:24-4(a)(1) and that it not only impaired and debauched J.T.’s morals but also would do same for the average seventeen-year-old, it cannot be said that the risk of harm caused by defendant’s message is too trivial to warrant dismissal of the prosecution.
The Zarrilli factors are qualitative as opposed to quantitative. Had the defendant been wiser in his choice of words to the alleged victim, he would have had a stronger argument. If he were wiser, he would not have been communicating with a student at all under the circumstances.
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