d. Dismissal is Not Warranted under Subsection (c)
N.J.S.A. 2C:2-1(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. The court concludes that no such extenuations exist in the present case. First, defendant’s argument that this constitutes an example of overzealous prosecution is a bald assertion without any evidentiary support and is belied by the fact that he was not charged for a more serious offense. Second, his reliance on character and context is unpersuasive as these factors are irrelevant in the instant application. Lastly, the court is not persuaded that a prosecution for the very act against which N.J.S.A. 2C:24-4 seeks to protect would not deter future offenders. For these reasons, these circumstances do not constitute extenuations and, accordingly, dismissal under subsection (c) is not warranted.
CONCLUSION
For the foregoing reasons, it cannot be said that the risk of harm to society caused by defendant’s Instagram message to J.T. asking her to “show me them huge rockets of your [sic]” is so trivial as to warrant dismissal of the prosecution. Accordingly, defendant’s motion for a de minimis dismissal is denied with prejudice. The court will issue an order consistent with this decision.
The Court repeatedly uses the phrase “the very act against which N.J.S.A. 2C:24-4 seeks to protect.” This seems to be an exaggeration when comparing a request for a topless image with the other sexual acts prohibited by the statute. Those acts include: (a)Sexual intercourse; or (b)Anal intercourse; or (c)Masturbation; or (d)Bestiality; or (e)Sadism; or (f)Masochism; or (g)Fellatio; or (h)Cunnilingus.