Judge Katz continued in relevant part: Under the first Zarrilli subordinate factor, the circumstances surrounding the commission of the offense further belie defendant’s contention that the conduct in question was too trivial to warrant prosecution. As stated hereinabove, defendant, an adult male, sent his message to a young female whom he would not have known but for his position at the school. Although the State does not allege that defendant had a legal duty to J.T. within the meaning of N.J.S.A. 2C:24-4(a)(1), his position as a guidance counselor is not irrelevant. Although the remaining Zarrilli subordinate factors are not implicated by defendant’s conduct, their absence by no means indicates that his action would cause little to no harm to society. For the foregoing reasons, dismissal is not warranted under N.J.S.A. 2C:2-11(b).
III. Subsection (c) of the De Minimis Statute
N.J.S.A. 2C:2-11(c) provides that dismissal is warranted where the defendant’s conduct presents other extenuations that it cannot reasonably be regarded as envisaged by the Legislature in forbidding the offense. Defendant argues that three factors constitute extenuating circumstances mandating dismissal of this action as de minimis: (a) that this is an example of overzealous prosecution; (b) that his outstanding character and the physical setting in which the offense occurred weigh in favor of dismissal; and (c) should this application be denied, the impact of defendant’s prosecution on the community would be minor.
a. Overzealous Prosecution
Defendant argues that this prosecution should be dismissed because it is overzealous. Specifically, defendant argues that “between the Camden County Prosecutor’s office’s decision to charge, and later indict, on a charge that carries the above penalties, and then using the seriousness of the charge and penalties to deny him admission into the prosecutor -run Pretrial Intervention Program, is a scintilla of an improper motive.” Defendant concludes that the State “could have chosen less serious charges or granted admission into Pretrial Intervention.”
The defendant would have to demonstrate that the prosecutor’s decision to deny P.T.I. was a gross and patent abuse of discretion. This is a very high standard. Most cases that are truly subject to a de minimis dismissal would also be ripe for a jury nullification defense at trial. Here, jury nullification would be a lofty goal since the case involves an older male making overtures towards a seventeen-year-old girl.