IN RE: THE APPLICATION OF J.F.M. FOR THE EXPUNGEMENT OF CRIMINAL RECORDS

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Superior Court of New Jersey, Appellate Division.

IN RE: THE APPLICATION OF J.F.M. FOR THE EXPUNGEMENT OF CRIMINAL RECORDS

DOCKET NO. A–5101–12T2

Decided: April 7, 2014

Before Judges Rothstadt and Lisa. William W. Murphy argued the cause for appellant J.F.M. Michael McLaughlin, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Geoffrey D. Soriano, Somerset County Prosecutor, attorney;  Mr. McLaughlin, on the brief).

Petitioner J.F.M. appeals from the Law Division's May 16, 2013 “Expungement Order” which granted in part and denied in part the relief he demanded in his previously filed “Verified Petition for Expungement” (the “Petition”).   In the Petition, J.F.M. sought the expungement of all of his arrests and convictions, pursuant to the Expungement of Records Act, N.J.S.A. 2C:52–1 to –32 (the “Act”), except for a 2009 contempt conviction for violation of a domestic violence restraining order, N.J.S.A. 2C:29–9b.   The State opposed petitioner's request to expunge his 1988 and 1995 municipal ordinance convictions and his 2009 contempt conviction.   The Law Division's order granted the request to expunge only those charges of record that were ultimately dismissed.   The court refused to expunge his 1988 and 1995 municipal ordinance convictions and his 1995 indictable offense conviction.

On appeal, petitioner argued that “the ․ court erred in finding the applicant ineligible for expungement of the [1995] indictable offense” because “there is only one crime attributable to the applicant,” and the “ ‘crime spree’ principle may be applicable.”   In partial opposition to petitioner's appeal, the State took the position that “while the trial court should have expunged petitioner's 1995 indictable conviction, the court properly denied petitioner's request to expunge his 1988 and other 1995 municipal court convictions” because their expungement was barred by defendant's 1995 indictable conviction pursuant to N.J.S.A. 2C:52–4.   In his reply, petitioner agreed with the State's position.   At oral argument, both parties confirmed their agreement that the only error committed by the Law Division was its refusal to expunge petitioner's 1995 conviction for an indictable offense.   We also agree and reverse the denial of the expungement for that 1995 indictable offense and remand the matter for entry of an amended order granting that relief.

As stated in the Petition, other than the 2009 contempt conviction, petitioner's criminal record at the time consisted of:

1.  A March 1, 1988 municipal ordinance violation conviction for which he paid a fine.

2. A June 9, 1995 conviction by way of plea to one third-degree and two fourth-degree crimes for which he received probation.

3. A December 3, 1994 arrest for two disorderly persons offenses that was ultimately dismissed.

4. A December 6, 1994 arrest for a disorderly persons offense that was ultimately dismissed.

5. A January 21, 1995 arrest for two disorderly persons offenses that were ultimately dismissed.

6. A January 22, 1995 arrest for three disorderly persons offenses that were ultimately dismissed.

7. An April 24, 1995 conviction by way of plea to what was originally a disorderly persons offense but was amended to an ordinance violation, and for which he paid a fine.

8. Two October 27, 2009 disorderly persons offense charges that were ultimately dismissed.

As noted, the court refused to expunge the 1988 and 1995 convictions for municipal ordinance violations and petitioner's 1995 indictable conviction.   It did so without a hearing.   According to the statement of reasons that accompanied its order, it refused to expunge those records because:

Pursuant to N.J.S.A. 2C:52–1(3) and State v. A.N.J., 98 N.J. 421, 427 (1985) [1] a person who has been convicted of more than one crime may not have any conviction expunged.

Our review of the record and the applicable law satisfies us that the court was mistaken in its application of the Act to petitioner's circumstances.

Chief Justice Rabner recently reviewed the goals and purposes for the enactment of the Act:

Millions of adults nationwide have criminal records that affect their reentry into society years after their sentence is complete.   Criminal records can present barriers to employment, licensing, and housing, among other things.

To afford a second chance to one-time offenders convicted of less serious offenses, who have led law-abiding lives since conviction, the Legislature enacted a law that allows certain records to be expunged after ten years.   N.J.S.A. 2C:52–2(a).   In 2010, the Legislature amended the statute to broaden opportunities for expungement.

[In re Kollman, 210 N.J. 557, 562 (2012).]

“Prior to the [Act's] amendment in 2010, and continuing through today, expungement was presumptively available for certain offenses after ten years.”  Id. at 569.  “It is well-settled that if a petitioner meets the objective requirements [for relief under the Act] by setting forth in an appropriate, verified petition, N.J.S.A. 2C:52–7, –8, that ten years elapsed since completion of a sentence and no subsequent convictions were incurred, then he or she is ‘presumptively entitled’ to expungement.”  In re LoBasso, 423 N.J.Super. 475, 488 (App.Div.2012) (quoting In re J.N.G., 244 N.J.Super. 605, 610 (App.Div.1990)).

The Law Division's refusal to expunge the 1995 indictable conviction in this case was contrary to the provisions of the Act and its goal.   To the extent the court relied on the fact that petitioner pled guilty to multiple counts, it mistakenly counted the 1995 conviction as multiple convictions because each charge arose out of the same event on the same date.   If committed concurrently, the statute permits expungement of a single conviction for multiple crimes.  In re Criminal Records of R.Z., 429 N.J.Super. 295, 303 (App.Div.2013).   However, “if two crimes are committed on separate occasions, they are precluded from expungement regardless of whether the two crimes carry a single sentencing date and [therefore] a single date of conviction.”  In re Ross, 400 N.J.Super. 117, 122 (App.Div.2008).   Although not clearly stated in the record, the parties do not dispute that the 1995 indictable conviction arose from a single event that evidently occurred on November 26, 1994, the day of petitioner's arrest.   The conviction therefore was for only one “crime” under the Act.

As the parties here correctly acknowledged, because petitioner was not convicted of any disorderly person offenses or other crimes within ten years of his 1995 indictable conviction, he was presumptively entitled to the expungement of the records relating to that conviction.  N.J.S.A. 2C:52–2(a).   There was no statutory basis, N.J.S.A. 2C:52–14, or objection raised by the State that justified the Law Division's refusal to expunge that record.2

Reversed in part and remanded for entry of an Amended Expungement Order consistent with this opinion.

FOOTNOTES

1.  FN1. In A.N.J., supra, the Court affirmed the Appellate Division's “judgment” that the provisions of the Code permit expungement of more than one disorderly persons conviction.  A.N.J., supra, 98 N.J. at 422.

2.  FN2. However, that 1995 conviction prevents the expungement of the records of petitioner's 1988 and 1995 municipal ordinance violations.  N.J.S.A. 2C:52–4.

PER CURIAM

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