NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
DOCKET NOS. A-1941-19T4
STATE OF NEW JERSEY,
ROCCO J. GIANCARLI, and
ANNA R. SPADACCINI,
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
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