The De Minimis Statute (Part 8)

Judge Katz continued in relevant part: Defendant also argues that the seriousness of the penalties that he would experience should he be found guilty of the offense warrant a dismissal. This argument is similarly unpersuasive. It simply cannot be said that the risk of harm caused by defendant’s message is too trivial to warrant dismissal of the prosecution. Although the court does not deny that a conviction of third-degree child endangerment carries serious consequences, it is not this court’s purview to undermine the finding of the Legislature that such consequences are necessary for the protection of our state’s children. Accordingly, in the present matter, the seriousness of resulting penalties does not militate in favor of dismissal.

With respect to context, defendant argues that because the message was sent on a snow day when alcohol was likely consumed, these circumstances negate the impact of his message. Voluntary intoxication may be a consideration when determining culpability, but not when determining whether a prosecution should be dismissed as de minimis. See State v. Cameron, (1986) (noting that voluntary intoxication is admissible as a defense to specific intent crimes). As this is irrelevant to the present application, it does not constitute an extenuation warranting dismissal.

c. Community Impact

Defendant argues that dismissal is warranted because “the prosecution of those who cat call 17-year-old women will not alter the behavior of most people, particularly when placed in a semi-anonymous online setting, where there is both literal and figurative distance between the sender and receiver.” As a preliminary matter, J.T. was not a “woman” as defendant contends, but rather a “child” under the express terms of N.J.S.A. 2C:24-4(b).

If the prosecution charged the defendant with the applicable second-degree crime, the defendant’s argument regarding the seriousness of the penalties, might be stronger. On the other hand, a more serious charge would strengthen the prosecution’s position as it pertains to it not being the province of the courts to undermine the Legislature.