Opinion
DOCKET NO. A-2552-14T4
07-07-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KATHERINE L. PARSONS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). John T. Lenahan, Salem County Prosecutor, attorney for respondent (Gregory G. Waterston, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and St. John. On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 14-03-0188. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). John T. Lenahan, Salem County Prosecutor, attorney for respondent (Gregory G. Waterston, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Katherine L. Parsons appeals from her conviction, after a jury trial, of third-degree forgery, N.J.S.A. 2C:21-1(a)(2). Defendant contends the motion judge erred by failing to dismiss the indictment on motion, and by failing to sua sponte charge the jury on the defense of mistake of fact. Having examined the arguments in light of the record and applicable law, we affirm.
The motion and trial records disclose the following facts and procedural history. Defendant was employed by the Salem City Housing Department (Department) as a housing inspector. As part of her duties, she was to inspect rental properties before a new tenant moved in to confirm that the property was code compliant. The inspection was to determine, among other things, that the unit contained smoke detectors, and that the electrical system and appliances were in working order, all to ensure tenant safety. After a property was inspected and found to be safe and code compliant, a Certificate of Occupancy (CO) was signed and stamped by the housing inspector, then issued to the landlord, which allowed the tenant to take occupancy.
On the date of the incident in question, two full-time housing inspectors were employed by the Department, defendant, and Carol Wright. Each inspector had her own signature stamp to be used when issuing a CO.
In August 2013, a prospective tenant approached the Salem County Board of Social Services (Board) and applied for financial assistance for a security deposit in connection with a rental unit on Walnut Street in the City of Salem (City). The Board provided the tenant with a packet of documents to be completed in connection with the requested assistance. On August 9, the tenant returned to the Board with the completed documents, including a CO dated August 7, bearing the stamped signature of housing inspector Wright. In processing the tenant's application, the Board noted that the CO was unsigned, but had Wright's stamped name affixed to the form. A Board representative called Wright to inquire about the CO. Wright told her that she did not stamp or sign that particular CO. She also stated that she had not inspected the unit.
At trial, Wright testified that because defendant was the owner of the property, she had inspected the unit on a prior occasion. Wright further testified that she had permitted defendant to use her signature stamp in the past, and that she had also used defendant's signature stamp. She stated that she had also permitted other parties to use her stamp on inspections she had performed.
Defendant admitted she used Wright's stamp on the proposed tenant's CO. She further stated the reason she stamped the CO in question was because of the urgency of preventing the tenant's homelessness, not because she was seeking to defraud the City. Defendant also stated that she had inspected the unit in question in the past and knew there were no safety issues when she gave the CO to the prospective tenant. Additionally, Melanie Walters, a City housing inspector from 1992 to 2005, testified that housing inspectors would sometimes use each other stamps.
On appeal, defendant presents the following issues for our consideration:
POINT I
DEFENDANT'S DE MINIMUS MOTION SHOULD HAVE BEEN GRANTED.
POINT II
THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO INSTRUCT THE JURY SUA SPONTE ON THE DEFENSE OF MISTAKE OF FACT. (NOT RAISED BELOW).
A defendant may petition the assignment judge for dismissal of prosecution on "de minimis" grounds. State v. Stern, 197 N.J. Super. 49, 54 (App. Div. 1984). The de minimis statute, N.J.S.A. 2C:2-11, provides as follows:
Here the motion judge was designated by the assignment judge to hear the petition. --------
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 conduct:
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.
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, or whomever is prosecuting the offense. State v. Zarrilli, 216 N.J. Super. 231 (Law Div.), aff'd, 220 N.J. Super. 517 (App. Div. 1987); State v. Brown, 188 N.J. Super. 656, 671 (Law Div. 1983), certif. denied, 101 N.J. 280 (1985). "When a de minimis motion is addressed it must be assumed that the conduct charged actually occurred." Zarrilli, supra, 216 N.J. Super. at 236.
"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); see also 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, supra, 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 State v. Evans, 340 N.J. Super. 244, 253 (App. Div. 2001) (citing Zarrilli, supra, 216 N.J. 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. Zarrilli, supra, 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. 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. Supra, 195 N.J. Super. at 468.
On the other hand, the following offenses were found to warrant prosecution. We concluded the theft of a hair bow worth $12.90 was not too trivial. Evans, supra, 340 N.J. Super. at 253. In addition, the distribution of sterile needles to drug users in an effort to prevent the spread of AIDS was held suitable for prosecution. State v. McCague, 314 N.J. Super. 254, 266 (App. Div. 1998).
Ultimately, "[t]he goal of a judge in exercising judicial discretion is a just result." Smith, supra, 195 N.J. Super. at 477; see also Kavanaugh v. Quigley, 63 N.J. Super. 153, 158 (App. Div. 1960). The statute must be read to permit dismissal "only if society as a whole — 'the people' — will be benefited and protected." Zarrilli, supra, 216 N.J. Super. at 239.
In his oral decision denying defendant's petition, the motion judge determined "the allegation is that [defendant] owns property, had the ability to produce a Certificate of Occupancy [for that property], which she stamped with another inspector's name, knowing that the inspection had not occurred." We concur with the decision of the motion judge, since defendant's conduct in issuing a CO for an uninspected dwelling unit posed a risk of harm to society.
Defendant's second point relates to the jury charge given by the trial judge. As defense counsel did not object when the charge was given, we review this argument pursuant to the plain error standard. R. 2:10-2; see also State v. Macon, 57 N.J. 325, 333 (1971). Under that standard, "we must disregard any error unless it is clearly capable of producing an unjust result. Reversal of defendant's conviction is required only if there was error sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (alteration in original) (citations and internal quotation marks omitted).
Defendant argues that the trial judge improperly failed to include, sua sponte, a jury instruction on mistake of fact. We disagree and find defendant's contention to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). We add the following brief comments.
Pursuant to N.J.S.A. 2C:2-4(a), a mistake of fact "is a defense if the defendant reasonably arrived at the conclusion underlying the mistake and [the mistake] negat[es] the culpable mental state required to establish the offense." Here, the purported mistake of fact was "that defendant's use of Carol Wright's signature stamp and her affixation of the stamp on the Certificate of Occupancy was based on defendant's belief that what she did was permissible[.]"
Although there was no jury instruction on mistake of fact, the trial judge clearly explained the requisite mental state for the offense of forgery. The court correctly advised the jury that in order to convict, it had to find, beyond a reasonable doubt, that defendant "made, completed, executed, authenticated, issued or transferred any writing . . . [s]o that it purported to be the act of another, who did not authorize the act." The trial judge also instructed the jury that the "second element that the State must prove beyond a reasonable doubt is that [defendant] acted with purpose to defraud." The trial judge further charged the jury on the concept of defendant acting with purpose. Therefore, the jury was made aware of the possibility that the mistake could prevent defendant from possessing the requisite mental state, yet it convicted defendant of the offense charged. See State v. Drew, 383 N.J. Super. 185, 196-97 (App. Div.), certif. denied, 187 N.J. 81 (2006).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION