NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 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 ...
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