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                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NOS. A-1941-19T4






                   Submitted October 6, 2020 – Decided October 21, 2020

                   Before Judges Yannotti, Mawla, and Natali.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Ocean County, Municipal Court Nos. 1503-
                   S-2019-27 and 1503-S-2019-28.

                   Bradley D. Billhimer, Ocean County Prosecutor's
                   Office, attorney for appellant (William Kyle Meighan,
                   Senior Assistant Prosecutor, of counsel and on the

                   Michael H. Schreiber, attorney for respondent Rocco J.
                   Giancarli (Michael H. Schreiber and W. Curtis Dowell,
                   on the brief).
            W. Curtis Dowell, attorney for Anna R. Spadaccini (W.
            Curtis Dowell and Michael H. Schreiber, on the brief).


      The State appeals from a January 7, 2020 Law Division order that

dismissed as de minimis summonses charging defendants Rocco J. Giancarli and

Anna R. Spadaccini with: 1) possession of fewer than fifty grams of marijuana,

 N.J.S.A. 2C:35-10(a)(4), and 2) the use, or possession with intent to use, drug

paraphernalia,  N.J.S.A. 2C:36-2.     The State argues the court abused its

discretion in granting defendants' motions to dismiss. We agree and reverse.


      We glean the following facts from the motion record. Defendants were

arrested in Beach Haven at approximately midnight after an officer purportedly

observed them on the beach with a lighter. As smoking is prohibited on the

beach, the officer approached defendants at which point Giancarli is alleged to

have attempted to conceal something behind his leg.          Both defendants

cooperated with the officer's subsequent questions resulting in Giancarli

voluntarily relinquishing a grinder containing marijuana, lighters, a glass

smoking device, and 8.36 grams of marijuana.

      After the prosecutor failed to respond to Giancarli's counsel's request to

voluntarily dismiss the charges, both defendants moved to dismiss the

summonses as de minimis violations pursuant to  N.J.S.A. 2C:2-11, based in part

on the insubstantial amount of marijuana seized. Giancarli's counsel certified

that dismissal was also appropriate under the circumstances as defendant was a

nineteen-year-old college student, who held a 3.95 GPA and was being

considered for an honors program. Counsel also stated that defendant recently

interned "with . . . one of the three largest accounting firms in the country."

      During oral argument, counsel for Spadaccini attested to similar academic

and personal accomplishments of his client. He stated that she is currently a

sophomore in college, has earned a 3.56 GPA, was a member of "the Business

Leadership Society," and volunteered with various charitable organizations.

      In opposing the motion, the State argued that in light of their intelligence,

defendants "should have known [marijuana] was illegal, and . . . that if caught,

there are consequences." The State also disagreed with defendants' argument

that possession of over eight grams of marijuana was a trivial amount and rather

than dismissing the charges, urged the court to consider a conditional discharge

under  N.J.S.A. 2C:36A-1 as defendants were "perfect candidates" for the

diversionary program. The State argued a conditional discharge would address

the significance of defendants' illegal actions while not substantially impacting

their educational or professional futures.

      The State noted that marijuana remained an illegal substance and

maintained that dismissal of the charges as de minimis would effectively "wip[e]

out [N.J.S.A] 2C:35-10(a)(4)." The State argued that even under the Attorney

General Guidelines,1 it retained discretion to prosecute possessory marijuana

  The Attorney General Guidelines referenced by the parties and the court are
contained in an August 29, 2018 Memorandum of Guidance (Memorandum).
The Memorandum addresses the "scope and appropriate use of prosecutorial
discretion by municipal prosecutors handling complaints in municipal court . . .
in cases involving marijuana-related offenses." Att'y Gen., Guidance Regarding
Municipal Prosecutors' Discretion in Prosecuting Marijuana and Other Criminal
Offenses 1 (Aug. 29, 2018). According to the Memorandum, because
categorical enforcement policies fail to promote a uniform administration of the
law it would "exceed the scope of a municipal prosecutor’s discretion to adopt
a policy or practice of refusing to seek convictions for statutory offenses related
to marijuana, notwithstanding the particular facts and applicable law in the
individual case . . . ." Id. at 2. Instead, the Memorandum advises prosecutors
to "exercise their prosecutorial discretion in marijuana-related cases as they
would in any other case—based on the particular facts and applicable law, and
consistent with their ethical obligations to the State, the defendant, and the
courts." Id. at 3. The Memorandum further explained that a prosecutor "should
consider the impact of adverse collateral consequences of a conviction based on
the specific circumstances or factors presented by the defendant or elicited by
the court" which include the age of the defendant, the nature and circumstances
of the arrest, adverse employment consequences, and adverse educational
consequences. Id. at 7.

offenses, particularly in situations where the proof of defendant's guilt was


       After hearing oral arguments, the court granted defendants' motions. In

its oral decision, the court recognized that marijuana remains an illegal

substance in New Jersey. The court also expressed concern that defendants "will

. . . continue to engage in that behavior, notwithstanding . . . any break that the

[c]ourt gives them" and noted that their possession of drug paraphernalia

distinguished them from an individual who is simply "hand[ed] . . . a joint, and

. . . decide[s] to try it for the first time."

       In exercising its discretion to dismiss the charges, however, the court

considered "the evolving notion of the use of marijuana" and that defendants

"possess[ed] . . . an amount that was purely . . . for personal use." The court

also rejected the alternative of a conditional discharge because that remedy

could have "particular consequences upon these defendants that would [be] . . .

more punitive . . . towards them than what the law was intended to be."

       The court issued a supplemental written opinion in which it again

expressed its disapproval of defendants' "ill advised" conduct and noted that

their actions "as a consumer . . . in the stream of other illegal substance sales,

creates a demand for many products that contribute to a lack of safety and health

in the community." The court reasoned, however, that "[t]he purpose of the de

minimis discretion of the court is to afford otherwise law-abiding individuals—

in this case two college students—with the opportunity to be free of a criminal

conviction . . . that would stigmatize an otherwise unblemished record." The

court also considered the Attorney General Guidelines and found that a

conditional discharge "would have a deleterious effect upon their future

employment and career opportunities," and that defendants' reporting

obligations to their schools "would interfere with internship and other

programmatical opportunities . . . [and could result in] removal from prestigious

honors programs." This appeal followed.


      An assignment judge is vested with "discretion to dismiss certain charges

[on de minimis grounds] to avoid an absurd application of the penal laws." State

v. Evans,  340 N.J. Super. 244, 248 (App. Div. 2001). As any such determination

is discretionary, we review the decision for an abuse of discretion. See ibid.

      We "may find an abuse of discretion when a decision 'rest[s] on an

impermissible basis' or was 'based upon a consideration of irrelevant or

inappropriate factors.'" State v. S.N.,  231 N.J. 497, 515 (2018) (quoting State

v. C.W.,  449 N.J. Super. 231, 255 (App. Div. 2017)). We "can also discern an

abuse of discretion when the trial court fails to take into consideration all

relevant factors and when its decision reflects a clear error in judgment." Ibid.

(quoting C.W.,  449 N.J. Super. at 255). Similarly, "when the trial court renders

a decision based upon a misconception of the law, that decision is not entitled

to any particular deference and consequently will be reviewed de novo." Ibid.

(quoting C.W.,  449 N.J. Super. at 255).

      The de minimis statute provides that:

            The assignment judge may dismiss a prosecution if,
            having regard to the nature of the conduct charged to
            constitute an offense and the nature of the attendant
            circumstances, [the judge] finds that the defendant's

            a. Was within a customary license or tolerance, neither
            expressly negated by the person whose interest was
            infringed nor inconsistent with the purpose of the law
            defining the offense;

            b. Did not actually cause or threaten the harm or evil
            sought to be prevented by the law defining the offense
            or did so only to an extent too trivial to warrant the
            condemnation of conviction; or

            c. Presents such other extenuations that it cannot
            reasonably be regarded as envisaged by the Legislature
            in forbidding the offense. The assignment judge shall
            not dismiss a prosecution under this section without
            giving the prosecutor notice and an opportunity to be
            heard. The prosecutor shall have a right to appeal any
            such dismissal.

            [N.J.S.A. 2C:2-11.]

      In deciding de minimis motions, the assignment judge must accept as true

the allegations made and view the facts in the light most favorable to the State.

State v. Zarrilli,  216 N.J. Super. 231, 236 (Law Div. 1987); State v. Brown,  188 N.J. Super. 656, 671 (Law Div. 1983). "When a de minimis motion is addressed

it must be assumed that the conduct charged actually occurred." Ibid.

      "The purpose of the de minimis statute is to provide assignment judges

with discretion similar to that exercised by the police, prosecutors and grand

jurors who constantly make decisions as to whether it is appropriate to prosecute

under certain circumstances." State v. Wells,  336 N.J. Super. 139, 141 (Law

Div. 2000); State v. Hegyi,  185 N.J. Super. 229, 232 (Law Div. 1982).

Specifically, the de minimis legislation seeks to avoid injustice "in a case of

technical but trivial guilt." State v. Hoffman,  149 N.J. 564, 587 (1997) (quoting

State v. Smith,  195 N.J. Super. 468, 477 (Law Div. 1984)). "The concept of

triviality or absurdity of a prosecution appears to be the touchstone for

dismissal." Brown,  188 N.J. Super. at 674.

      To determine triviality, a court should consider all relevant circumstances,

though, the most important factor is the risk of harm the defendant's conduct

posed to society. See Evans,  340 N.J. Super. at 253 (citing Zarrilli, 216 N.J.

                                         8 Super. at 239). The following offenses have been found too trivial to warrant

prosecution. In Zarrilli, a twenty-year-old college student took a single sip of

beer at a church event.  216 N.J. Super. at 240. The court found "the harm to

society caused or threatened by [defendant's] conduct was so minimal as not to

warrant the condemnation of a conviction." Ibid. Likewise, in Smith, the court

dismissed a shoplifting offense where a college student stole three pieces of

bubble gum, finding it to be a trivial offense.  195 N.J. Super. at 467, 477.

      Ultimately, "[t]he goal of a judge in exercising judicial discretion is a just

result." Smith,  195 N.J. Super. at 477. The statute must be read to permit

dismissal "only if society as a whole—'the people'—will be benefited and

protected." Zarrilli,  216 N.J. Super. at 239.

      Against the aforementioned standard of review, we conclude the court

mistakenly exercised its discretion in dismissing the possessory offenses as de

minimis. These violations of the penal code are neither "trivial" nor would the

prosecution of those charges under the circumstances be "absurd." Brown,  188 N.J. Super. at 674.

      While the amount of marijuana allegedly possessed by defendants was not

substantial, it was more than sufficient to prosecute them for violating  N.J.S.A.

2C:35-10(a)(4).   Indeed, even "minute amounts" of a controlled dangerous

substance (CDS) are sufficient to sustain a conviction. Wells,  336 N.J. Super.

at 145 (citing State v. Humphreys,  54 N.J. 406, 411 (1969)).

       In Wells, defendant was charged with possession of 0.34 grams of

cocaine. Id. at 140. The Law Division denied defendants' application to dismiss

the charges under  N.J.S.A. 2C:2-11 as de minimis reasoning that the "State has

a zero tolerance drug policy which 'refuses to treat as trivial the possession of

even the most minuscule amounts of a controlled dangerous substance.'" Id. at

143 (quoting State v. Sorge,  249 N.J. Super. 144, 148 (Law. Div. 1991)). The

court further explained that based on the intent of the Legislature, "[p]ossession

of CDS, no matter what the quantity, does not meet the test for a de minimis

infraction pursuant to N.J.S.A. 2C:2-11." Id. at 146.

       Further, defendants alleged criminal conduct is unlike the defendant in

Zarrilli, who merely took a sip of beer at a church function.  216 N.J. Super. at
 240.   Defendants possessed not only marijuana but related paraphernalia,

including a grinder, suggesting their use was not a casual, isolated event.

       We also disagree with defendants that the facts before the court bear any

resemblance to the trivial crime committed by the defendant in Smith. It cannot

be reasonably disputed that possession of a CDS, along with products to

facilitate its use, is a materially different offense with more profound individual

and societal consequences than stealing three pieces of bubble gum.

      We acknowledge that based on their counsels' representations, defendants

have no criminal records, achieved considerable academic success at their

respective colleges, and participated in charitable events in their communities,

all facts that are commendable and which the court considered. In dismissing

the summons, however, the court appeared to afford those accomplishments, and

the effect any conviction would have on their professional careers, undue weight

without appropriate support in the record. The court's decision also minimized

the State's significant and legitimate interest in prosecuting possessory drug


      The only verified facts in the record are contained in the certification of

Giancarli's counsel. We initially note that counsel's certification failed to satisfy

Rule 1:6-6 as it clearly was not based on personal knowledge. See Deutsche

Bank Nat'l Trust Co. v. Mitchell,  422 N.J. Super. 214, 226 (App. Div. 2011)

("Attorneys in particular should not certify to 'facts within the primary

knowledge of their clients.'" (citing Pressler & Verniero, Current N.J. Court

Rules, cmt. on R. 1:6-6 (2011))).

      More importantly, the certification does not even address the

consequences that a conviction would have on either defendant's academic

coursework or future employment.       The record, therefore, simply does not

support the court's conclusion that a conviction, let alone a conditional

discharge, "would have a deleterious effect upon [defendants'] future

employment" and "interfere with internship and other programmatical

opportunities" or result in the potential "removal from prestigious honors

programs." It was error for the court to accept counsel's arguments as facts to

support its determination.

      In addition, we find the record equally devoid of support for the court 's

finding that a conditional discharge would have "particular consequences" for

defendants and would be "more punitive . . . towards them than what the law

was intended to be." It was therefore an error in judgment for the court to

conclude effectively that defendants are uniquely situated when compared with

countless other defendants who face similar possessory marijuana charges.

      Finally, it was an abuse of discretion for the court to rely on the alleged

"evolving notion of the use of marijuana" and the purported "changing societal

attitudes with regard to the possession of small amounts of marijuana for

recreational use" to support its decision. Marijuana remains classified as a CDS

in New Jersey and except for prescribed medical uses remains illegal.  N.J.S.A.

24:21-5(e)(10);  N.J.S.A. 2C:35-2 (defining a CDS);  N.J.S.A. 24:6I-1 to -16

(permitting limited use of marijuana under the Jake Honig Compassionate Use

Medical Cannabis Act). Further, the Attorney General Guidelines specifically

proscribe the State from categorically refusing to prosecute marijuana related

offenses. Att'y Gen., Guidance Regarding Municipal Prosecutors' Discretion in

Prosecuting Marijuana and Other Criminal Offenses 2-3 (Aug. 29, 2018). Even

the proposed constitutional amendment legalizing the personal use of marijuana

that is set for consideration by voters on November 3, 2020 would not legalize

marijuana use for those under twenty-one, like defendants. S.C.R. 183 (2019)

(passed, amendment pending ratification).

      In sum, we conclude the court abused its discretion in concluding

defendants' possession of marijuana and related paraphernalia were de minimis

infractions under  N.J.S.A. 2C:2-11. To the extent we have not addressed any of

the defendants' arguments, it is because we conclude they are without sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

      Reversed and remanded for further proceedings consistent with this



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