The Law Division continued in relevant part: As stated by the prosecution in opposition thereto, such claims are nothing more than “bald, unsupported assertions.” Again, as argued by the State, given defendant’s role as a guidance counselor, he could have been charged with child endangerment in the second degree, under the theory that he had a legal duty to J.T. through his position at the school. The State, for whatever reason, chose not to pursue such a charge. Defendant’s assertion is further belied by the fact that the grand jury returned the indictment against him for a third-degree offense. Accordingly, the court is unpersuaded by his argument that this prosecution is overzealous and should therefore be dismissed.
b. Character and Context
Defendant argues that his outstanding character and the physical setting in which the offense occurred weigh in favor of dismissal. With respect to the former, defendant argues that his background, experience, and character are well-documented in letters submitted by a “wide variety of people”, including the founder and current head of LEAP Academy. He concludes that as “an educated, upstanding man with a strong career and history of law-abiding behavior . . . he was blindsided by the decision to charge him with a Third-Degree Offense.”
Although there may be instances where a defendant’s background, experience, character, and criminal history are relevant in determining whether to dismiss a prosecution as de minimis, such is not the case here. Evans specifically noted that a defendant’s prior criminal history is most relevant where the ruling calls for or involves some discretion. No such need for discretion exists here. Because, in an application such as this, all alleged facts are considered to be true, defendant’s message was undoubtedly “sexual conduct” that “impaired or debauched” both J.T.’s morals and those of an average child. Accordingly, defendant’s character is not relevant to the present application.
The prosecutor’s office can still seek a superseding indictment for a second-degree charge. Since the defendant is likely to get probation without jail for the third-degree charge, he would likely accept that as opposed to mandatory state prison time for a second-degree conviction.