                        NOT FOR PUBLICATION WITHOUT THE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

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,

                                               3                                   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

                                        4                                 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

                                  5                          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 fifteen-

cent 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

                                        6                             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

                                    7                                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-month-

old 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.

                                        8                              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

                                        9                                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.

                               10                          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 non-

triviality 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.




                                         11                                   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



                                      12                              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.

                                    13                               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

                                      14                             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.

                                          15                                 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.

                                         16                               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

                                   17                            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.

                                       18                                A-3826-14T1
    Affirmed    in   part,   remanded   in   part.   We   do   not    retain

jurisdiction.




                                  19                                 A-3826-14T1
