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APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3826-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
VIRGINIA THOMAS,
Defendant-Appellant.
___________________________________
Argued February 14, 2017 – Decided October 17, 2017
Before Judges Ostrer, Leone and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Salem County, Indictment
No. 14-01-0034.
Barry J. Serebnick argued the cause for
appellant (Helmer, Conley & Kasselman, P.A.,
attorneys; Mr. Serebnick, of counsel and on
the brief).
Marianne V. Morroni, Assistant Prosecutor,
argued the cause for respondent (John T.
Lenahan, Salem County Prosecutor, attorney;
Ms. Morroni, of counsel and on the brief).
The opinion of the court was delivered by
OSTRER, J.A.D.
After a jury trial, Virginia Thomas was convicted of third-
degree interference with custody, N.J.S.A. 2C:13-4. She took her
daughter to a make-up water safety class, rather than to the
child's father for his Monday evening parenting time as a court
order prescribed. The court sentenced defendant to one year of
non-custodial probation.
Defendant raises the following points for our consideration:
POINT I
THE PROSECUTOR'S FAILURE TO PRESENT
EXCULPATORY EVIDENCE TO THE GRAND JURY WAS
MISCONDUCT AND WARRANTS A REVERSAL OF THE
CONVICTION AND A DISMISSAL OF THE INDICTMENT
WITH PREJUDICE.
POINT II
THE TRIAL COURT IMPROPERLY DENIED THE
DEFENDANT'S MOTION FOR DISMISSAL BASED UPON
THE GROUNDS THAT THE CONDUCT CHARGED IS DE
MINIMIS.
POINT III
THE TRIAL COURT ERRED, AND DENIED THE
DEFENDANT A FAIR TRIAL BY LIMITING THE ABILITY
OF THE DEFENDANT TO PRESENT HER DEFENSE.
POINT IV
THE TRIAL COURT ERRED IN INSTRUCTING THE JURY,
BY FAILING TO MOLD THE INSTRUCTIONS TO THE
FACTS OF THIS CASE.
Defendant's principal point on appeal is that the trial judge
mistakenly exercised his discretion in denying her motions to
2 A-3826-14T1
dismiss the pre-indictment complaint and the indictment on the
ground her infraction was de minimis. N.J.S.A. 2C:2-11. As we
are not satisfied the trial court considered all relevant factors
in its de minimis analysis, we remand to the assignment judge for
reconsideration.
I.
The de minimis statute authorizes an assignment judge to
dismiss a prosecution on one of three grounds, after considering
"the nature of the conduct charged to constitute an offense and
the nature of the attendant circumstances." Ibid. First, the
judge may dismiss if the defendant's conduct was "within a
customary license or tolerance," which the victim did not expressly
negate, and which was not inconsistent with the legislative
purpose. N.J.S.A. 2C:2-11(a). Second, the judge may dismiss if
the conduct "[d]id not actually cause or threaten the harm or
evil" that the statute was designed to prevent, "or did so only
to an extent too trivial to warrant the condemnation of
conviction." N.J.S.A. 2C:2-11(b). Third, dismissal may be ordered
if the defendant's conduct "[p]resents such other extenuations
that it cannot reasonably be regarded as envisaged by the
Legislature in forbidding the offense." N.J.S.A. 2C:2-11(c).
There are no published decisions that apply the de minimis
statute to a prosecution for interference with custody. However,
3 A-3826-14T1
we have applied the statute in other contexts, focusing on the
"triviality" ground for dismissal. See State v. Evans, 340 N.J.
Super. 244 (App. Div. 2001) (reversing de minimis dismissal of
shoplifting prosecution, where defendant took $12.90 hair
accessory); State (Harris) v. Cabana, 315 N.J. Super. 84 (Law Div.
1997), aff'd o.b., 318 N.J. Super. 259 (App. Div. 1999) (affirming
de minimis dismissal of private assault prosecution, where
politician waving flier at a rival at a political gathering grazed
the rival with his knuckle); State v. Zarrilli, 216 N.J. Super.
231 (Law Div.), aff'd o.b., 220 N.J. Super. 517 (App. Div. 1987)
(affirming de minimis dismissal of under-age drinking prosecution
for one sip of beer by a twenty-year-old).
"The benefit[s] of dismissal" consists of the value of not
tainting a citizen with a conviction, and saving judicial
resources. Zarrilli, supra, 216 N.J. Super. at 239. "When a de
minimis motion is addressed it must be assumed that the conduct
charged actually occurred." Id. at 236; see also Evans, supra,
340 N.J. Super. at 249; Cabana, supra, 315 N.J. Super. at 86.
The assignment judge's de minimis determination is
discretionary. The law states an assignment judge "may" dismiss
a charge. N.J.S.A. 2C:2-11; see also State v. Brown, 188 N.J.
Super. 656, 672-73 (Law Div. 1983) (reviewing legislative history
and contrasting permissive language in Criminal Code with proposed
4 A-3826-14T1
mandatory language which it replaced). The assignment judge may
decline to dismiss, even after making the requisite finding under
the statute. Cf. II Final Report of the New Jersey Criminal Law
Revision Commission, § 2C:2-11 Commentary, at 74 (Oct. 1971) (Final
Report) (commenting that the proposed use of the word "shall" —
which the Legislature later rejected — meant "that if the Court
makes the requisite findings, it must dismiss"). Nonetheless, the
discretionary decision must be moored to a fact-sensitive review
of the "nature of the conduct" and the "nature of circumstances."
See Evans, supra, 340 N.J. Super. at 248-49; Cabana, supra, 315
N.J. Super. at 88; see also State v. Smith, 195 N.J. Super. 468,
471-72 (Law Div. 1984).
Addressing a triviality analysis under N.J.S.A. 2C:2-11(b),
we stated that "what is most important is the risk of harm to
society of defendant's conduct." Evans, supra, 340 N.J. Super.
at 253; see also Zarrilli, supra, 216 N.J. Super. at 239 (stating
risk of harm to society is "[t]he one question to be asked and
answered"). The "risk of harm" must be evaluated in light of "the
circumstances surrounding the commission of the offense." Id. at
240. For example, possession of a minute quantity of a drug may
pose a greater risk of harm in a prison, than elsewhere. Ibid.
In property crimes, the amount and value of the property is likely
relevant. Compare Evans, supra, 340 N.J. Super. at 252 (holding
5 A-3826-14T1
that shoplifting a $12.90 item is not trivial), with Smith, supra,
195 N.J. Super. at 477 (finding trivial the theft of three fifteen-
cent pieces of bubble gum). The presence of contraband, the threat
of violence, or the use of weapons may convert a trivial offense
into a non-trivial one. See Zarrilli, supra, 216 N.J. Super. at
240.
A defendant's "prior criminal history may be taken into
account in determining triviality . . . ." Evans, supra, 340 N.J.
Super. at 253. The court in Smith, 195 N.J. Super. at 474
distinguished between a "theft of a minor item by a professional
shoplifter" and "an aberrative" violation of law "by an otherwise
reputable and law-abiding citizen." (citing State v. Ivan, 33 N.J.
197, 202 (1960)). A defendant's state of mind may also be
relevant. Cabana, supra, 315 N.J. Super. at 88.
Although our published cases have focused on a triviality
analysis under N.J.S.A. 2C:2-11(b), the Code also empowers the
judiciary, under N.J.S.A. 2C:2-11(c), "to use a rule of reason,"
see Final Report, supra, § 2C:2-11 Commentary, at 75, to find a
crime de minimis based on extenuating circumstances. Such
"extenuations" must place the prosecution beyond what the
Legislature envisaged in defining the criminal offense. N.J.S.A.
2C:2-11(c). The Law Revision Commission conceived such
"extenuations" as "extraordinary and unanticipated mitigations for
6 A-3826-14T1
the particular conduct." Final Report, supra, § 2C:2-11
Commentary, at 75. Many of the factors that apply to a triviality
analysis under N.J.S.A. 2C:2-11(b), such as an offender's prior
history, may apply to an extenuations analysis under N.J.S.A.
2C:2-11(c).
Turning to the "customary license or tolerance" prong,
N.J.S.A. 2C:2-11(a), the Law Revision Commission cited as examples
"trespassing upon land in an area where it has traditionally been
permitted by the owners or picking up a newspaper from a stand
when one does not have the money for it intending to pay the next
day." Final Report, supra, § 2C:11-2 Commentary, at 74. In State
v. Nevens, 197 N.J. Super. 531, 535 (Law Div. 1984), the court
dismissed a shoplifting charge against a paying casino buffet
patron who took a few pieces of fruit with him after he ate his
lunch. The defendant customarily did that when he left casino
buffets, and this particular casino did not post signs telling
patrons they had to consume all food in the restaurant.
The plain language of the statute dictates a separate de
minimis analysis under each of the three subsections. For example,
a non-trivial harm may be de minimis because of extenuating
circumstances that place the conduct outside what the Legislature
intended to proscribe. Likewise, a non-trivial harm may be de
minimis because it was within a customary license or tolerance
7 A-3826-14T1
that the aggrieved party did not expressly negate. N.J.S.A. 2C:2-
11(a).
II.
Defendant did not dispute that she took her fifteen-month-
old daughter to a make-up water safety class, instead of bringing
her to the drop-off location for the father's court-ordered
parenting time on a Monday between 4:00 and 7:30 p.m. Although
the class ran from 6:30 to 7:00 p.m., defendant kept the child the
entire evening. The parenting time order, entered after defendant
filed for divorce, required that the father's time be supervised.
His only other parenting time was alternating Saturdays, from 9:00
a.m. to 7:00 p.m.
Defendant asserted the class was important for the child's
safety, because there was a backyard pool where she and the child
lived. The regular classes occurred during defendant's parenting
time. She alleged that Monday at 6:30 p.m. was the only time
available to make up a class the child missed because of illness.
In a text message, defendant asked her husband to switch his
parenting time to another day. He refused, stating that three
other people were going to join him for parenting time.1 He alleged
1
He elaborated at trial that he had planned something of a family
reunion, involving friends and family from far flung places who
could not reschedule.
8 A-3826-14T1
that defendant had previously made plans during his parenting
time. He insisted she comply with the court-ordered time. After
some back-and-forth between the parents, and defendant's
unsuccessful effort to enlist the aid of her mother-in-law,
defendant withheld the child.
Plaintiff filed a criminal complaint the next day, alleging
a violation of N.J.S.A. 2C:13-4, and asserting defendant had
previously interfered with his parenting time. Thereafter, the
prosecutor obtained a single count indictment, charging a
violation of N.J.S.A. 2C:13-4.
In support of her motions, defendant invoked the de minimis
statute without limitation. She argued that the parenting time
dispute was best addressed in the Family Part. She stated she had
filed for a divorce a few months before the incident, and her
husband resorted to the criminal justice system to harass her.
She said he previously filed a criminal complaint against her
alleging wrongs involving a family business, but then failed to
prosecute when it came to trial.
Defendant also denied she intended to permanently deprive her
husband of his parenting time, as she offered him other time with
the child to make up for the missed Monday parenting time. She
contended she was motivated by the child's best interests; she and
her husband had in the past mutually agreed to modify the parenting
9 A-3826-14T1
time schedule; and she denied that she previously deprived him of
parenting time. Defendant argued that parents should be encouraged
to try to reach such mutual accommodations, and questioned whether
her husband was genuinely interested in his parenting time, noting
that his mother, not he, often met the child at the pick-up
location.
In denying the pre-indictment motion, the trial judge did not
expressly apply any of the de minimis statute's three prongs, but
evidently applied the triviality prong and not the others.2 The
court reviewed the terms of the interference with custody statute,
2
The Assignment Judge in this case referred the dismissal motion
to the trial judge, who was not, at the time, the criminal
presiding judge. Defendant does not challenge this referral.
However, we note the Supreme Court has not expressly authorized
any referrals under N.J.S.A. 2C:2-11, unlike referrals to
presiding judges of Graves Act motions under N.J.S.A. 2C:43-6.2.
See State v. Nance, 228 N.J. 378, 385-86 (2017) (noting the
Legislature authorized assignment judges to grant Graves Act
waivers, and the Court permitted them to delegate that authority
to presiding judges (citing Administrative Office of the Courts,
Memorandum, Motions in Graves Act Cases — Delegable by Assignment
Judge to Criminal Presiding Judge (Nov. 21, 2008)); see also
Memorandum, Criminal - Motions for Waiver of the Graves Act
Mandatory Minimum Term and Sentencing — Clarification Based on
State v. Nance (June 12, 2017) n. 1 ("Notwithstanding that
statutory language [of the Graves Act], the authority for
determining which Superior Court judges handle which matters lies
with the Chief Justice and the Supreme Court." (citing Winberry
v. Salisbury, 5 N.J. 240, cert. denied, 340 U.S. 877, 71 S. Ct.
123, 95 L. Ed. 638 (1950)). Notably, Rule 1:33-6(a), which
addresses an assignment judge's delegation authority, only permits
referrals to presiding judges, and only for obligations imposed
by the Rules, not statutes.
10 A-3826-14T1
which makes it a third-degree crime if "[a]fter the issuance of a
temporary or final order specifying custody, joint custody rights
or parenting time, takes, detains, entices or conceals a minor
child from the other parent in violation of the custody or
parenting time order." N.J.S.A. 2C:13-4(a)(4). The court rejected
defendant's argument that the interference with custody statute
was intended to address only an ongoing course of conduct or
removal of a child from the State.
The court then reviewed triviality cases. The court
contrasted the triviality findings in Smith and Zarrilli,
involving three pieces of gum, and a sip of beer, and the non-
triviality finding in Evans, involving the theft of a $12.90 item.
Although recognizing it as a "one-time event," the court found
that defendant's conduct "would fall on the non-de minimis side
of that equation." The court stated that it would have been de
minimis if one returned a child "several hours late from a
visitation time," but not, apparently, the complete deprivation
of three-and-a-half hours of parenting time.
The court also denied, without additional explanation,
defendant's post-indictment attempt to secure dismissal on de
minimis grounds. The court stated it would not revisit the issue.
11 A-3826-14T1
III.
On appeal, defendant contends she met each of N.J.S.A. 2C:2-
11's three subsections, and the trial court erred in denying her
motion to dismiss. As the decision to dismiss on de minimis
grounds is discretionary, we review the decision for an abuse of
that discretion. See Evans, supra, 340 N.J. Super. at 253. At
the outset, we ascertain whether the trial court correctly applied
the law, because a decision "that lacks a [legal] foundation
. . . becomes an arbitrary act." Paradise Enters. v. Sapir, 356
N.J. Super. 96, 102 (App. Div. 2002). We may consider whether the
court applied impermissible factors, or failed to apply required
ones. See Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571
(2002) (stating an abuse of discretion exists when, among other
circumstances, a decision is "based upon a consideration of
irrelevant or inappropriate factors" (quoting State v. Baynes, 148
N.J. 434, 444 (1997)). An abuse of discretion also "arises when
a decision is made without a rational explanation . . . ." Ibid.
(quoting Achacoso-Sanchez v. Immigration and Naturalization Serv.,
779 F.2d 1260, 1265 (7th Cir. 1985)).
Adhering to this standard of review, we cannot say it was an
abuse of discretion for the trial court to determine that
defendant's violation of the order was not trivial. The court
12 A-3826-14T1
recognized that the plain language of the statute was not limited
to ongoing courses of conduct. We discern no error of law.
Although the court did not fully address the surrounding
circumstances, the court did consider the risk of harm, contrasting
the late return of a child, which the court viewed as trivial, and
the deprivation of a scheduled parenting time entirely, which the
court said was not.3 The court also considered defendant's prior
history, by assuming the deprivation was an isolated or "one-time
event."
We are keenly aware that the prosecution for a violation such
as defendant's is a rarity, and the decision to prosecute this
case is certainly debatable. In recommending adoption of an
interference with custody provision, the Law Revision Commission
warned, "One should be especially cautious in providing penal
sanctions applicable to estranged parents struggling over the
custody of their children, since such situations are better
3
On the other hand, surrounding circumstances may justify viewing
a late return more harshly than complete deprivation of an assigned
parenting time. For example, a parent who is several hours late
in returning a child, but does not alert the receiving parent of
the situation, may cause much greater anguish and harm to the
worried parent than a parent who announces in advance that she
intends to retain the child during the other parent's scheduled
parenting time, attempts to justify that deprivation in the
interests of the child, and offers prompt compensatory time.
13 A-3826-14T1
regulated by custody orders enforced through contempt
proceedings." Final Report, supra, § 2C:13-4 Commentary, at 188.
We also recognize that the Family Part has multiple remedies
at its disposal to address violations of parenting time orders,
such as occurred here. See R. 5:3-7. More than twenty-five years
after enactment of the criminal interference with custody statute,
the Legislature strengthened civil remedies for violations of
parenting time orders. L. 1997, c. 300. In so doing, the
Legislature found that "[p]roceeding criminally in cases where the
terms of an order of visitation with a child has failed to be
honored may be both difficult and inappropriate." N.J.S.A. 2A:34-
23.2(c). One may certainly envisage a more egregious interference
with custody than is present here. See, e.g., State v. Jones, 346
N.J. Super. 391 (App. Div.) (mother took her teen-age child to
Peru for extended period without telling father in violation of
parenting time order), certif. denied, 172 N.J. 181 (2002).
Yet, by grading second-degree interference as that lasting
more than twenty-four hours, and third-degree interference as
twenty-four hours or less, see N.J.S.A. 2C:13-4(a), the
Legislature plainly contemplated that deprivation of less than a
day of parenting time may constitute criminal interference with
custody. While we agree with defendant that the courts encourage
parents to cooperate with one another in sharing the parenting of
14 A-3826-14T1
a child, and to reach mutually acceptable accommodations, neither
the courts nor the statute encourages unilateral action, or an "I
know best" attitude that violates another parent's rights under
the law, or a court order. Constrained by our standard of review,
we shall not disturb the trial court's decision to deny dismissal
on triviality grounds.
However, the court was obliged also to address the two other
subsections of the statute, and provide a "rational explanation"
for rejecting these alternative grounds for de minimis dismissal.
See Flagg, supra, 171 N.J. at 571. The court's failure to do so
with respect to the "customary license or tolerance" prong,
N.J.S.A. 2C:2-11(a), was harmless, as defendant failed to present
evidence that unilaterally denying her husband his entire allotted
parenting time that day was customary or tolerated within their
relationship, or more generally among estranged parents.4
We reach the opposite conclusion regarding the court's
failure to address if the case "present[ed] such extenuations that
it cannot reasonably be regarded as envisaged by the Legislature
in forbidding the offense." N.J.S.A. 2C:2-11(c). An
"extenuations" analysis should address whether defendant presented
4
The statute does not specify whether the license or tolerance
must be customary within the community at large, within the
relationship of the affected persons, or both. We need not resolve
that question as defendant fails on both bases.
15 A-3826-14T1
such "extraordinary and unanticipated mitigations for [her]
particular conduct," Final Report, supra, § 2C:11-2 Commentary,
at 75, that the Legislature could not have "envisaged" a
prosecution, N.J.S.A. 2C:2-11(c). The Legislature has expressly
stated that criminal prosecutions for failure to honor parenting
time may be "inappropriate," N.J.S.A. 2A:34-23.2(c), and the
initial drafters of the criminal provision also counseled caution
in proceeding criminally, Final Report, supra, § 2C:13-4
Commentary, at 188.5 See also Fall & Romanowski, Child Custody,
Protection & Support, § 26:1-2 at 445 (2017) (stating that "civil
means of enforcement should be exhausted before resorting to
criminal remedies").
Applying "a rule of reason," Final Report, supra, § 2C:2-11
Commentary, at 75, the trial court here was obliged to consider
whether defendant's proffered extenuations, if true, would be
sufficient. Defendant contended she acted in her child's interest,
5
We are aware that the Legislature has over the years refined the
statute, including clarifying that parents with lawful custodial
rights may be guilty of the offense. See L. 1990, c. 104, §1.
The Legislature has also upgraded the crime. See L. 1982, c. 199
(making all violations of the statute fourth-degree crimes, where
original version included a disorderly persons offense); L. 1990,
c. 104, § 1 (upgrading violations to a third-degree crime); L.
1999, c. 190, § 2 (making it a second-degree crime to interfere
with custody by taking, detaining, enticing or concealing a child
outside the United States or for more than twenty-four hours).
The increased punishment justifies closer scrutiny of a de minimis
challenge.
16 A-3826-14T1
not her own. She offered compensatory time. She also did not
fully appreciate that defendant had planned a reunion of family
and friends with the child, which could not be rescheduled.
Although the interference was not trivial, it was limited in
duration. She did not secrete the child, or leave her whereabouts
to worried speculation. She claimed this was the first time she
deviated from the order without her husband's consent. She also
claimed her husband has previously resorted to the criminal justice
system to harass her.
In determining whether these allegations, if found to be
true, suffice as "extenuations" to warrant dismissal, the court
need not conclude that what defendant did was permissible. It was
not. The question is whether, in light of those circumstances,
the case was not the sort envisaged by the Legislature in enacting
and thereafter amending the interference with custody statute.
IV.
Defendant's remaining points warrant only brief comment. The
prosecutor did not withhold clearly exculpatory evidence from the
grand jury, nor engage in misconduct, by declining to respond when
a grand juror asked if defendant's violation involved a "single
incident." See State v. Hogan, 144 N.J. 216, 238 (1996) ("Only
when the prosecuting attorney has actual knowledge of clearly
exculpatory evidence that directly negates guilt must such
17 A-3826-14T1
evidence be presented to the grand jury."). First, defendant and
her husband disputed whether her violation was an isolated
instance. Second, even if it were, that would not exculpate.
The judge's evidentiary rulings were not erroneous, as
defendant sought to introduce evidence in mitigation of her
actions, as opposed to negate an element of the offense. The
trial court's evidentiary rulings are entitled to "substantial
deference." State v. Morton, 155 N.J. 383, 453 (1998), certif.
denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).
We discern no abuse of discretion. See State v. Carter, 91 N.J.
86, 106 (1982). Defendant's plain error challenge to the court's
jury instruction lacks sufficient merit to warrant any comment.
R. 2:11-3(e)(2).
V.
In sum, we affirm the conviction subject to a remand to the
assignment judge to reconsider defendant's motion to dismiss on
the grounds set forth in N.J.S.A. 2C:2-11(c).6 If the assignment
judge grants the motion, the conviction shall be vacated. If the
assignment judge denies the motion, then defendant may seek
appellate review of that order.
6
We are aware that the judge who considered the motion has retired.
We do not express an opinion on the assignment judge's power to
delegate the decision in this matter, as the issue was not squarely
presented.
18 A-3826-14T1
Affirmed in part, remanded in part. We do not retain
jurisdiction.
19 A-3826-14T1