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 

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.

NOT FOR PUBLICATION WITHOUT THE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.

October 17, 2017
2 A-3826-14T1

After a jury trial, Virginia Thomas was convicted of thirddegree 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 
3 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, 
4 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 
5 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 
6 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 fifteencent 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 
7 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 
8 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-monthold 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. 
9 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 
10 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. 
11 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 nontriviality 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.
12 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 
13 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. 
14 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 
15 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.
16 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. 
17 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 
18 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. 
19 A-3826-14T1

Affirmed in part, remanded in part. We do not retain 

jurisdiction.