Staller, J.c.c., Temporarily Assigned.
On September 7, 1971 Frank Campobasso was arrested and convicted for violation of N.J.S.A. 24:21-20(b) as a disorderly person, being under the influence of a controlled dangerous substance and he now moves to expunge the records of his arrest and conviction pursuant to N.J.S.A. 24:21-28.
At the time of arrest and conviction Campobasso was 18 years old and it was his first offense. The municipal court judge found him guilty, suspended sentence and ordered defendant to "leave town."
Since his arrest and conviction Campobasso has not been convicted of any subsequent offense, either under N.J.S.A. 24:21-1 et seq. or any other statute. In March 1973 he entered the Harry Lundeburg School of Seamanship at Piney Point, Maryland. Later that month he was "forced out of school because it was learned that [he] had a criminal
record." He may not re-enter the school until and unless his record of arrest and conviction is expunged.
Campobasso meets all requirements to have his record expunged except that no term of probation was imposed upon him at the time of sentence.
Decision was reserved after argument on the motion because the statute, N.J.S.A. 24:21-28, on its face appears to require a term of probation before the running of a period of not less than six months prerequisite to the application to expunge. Counsel were requested to present briefs on the issue of expungement where no probationary term was given, and the Attorney General as amicus curiae has also submitted a brief on this issue. All agree that defendant should have his arrest and conviction expunged.
The portion of the statute providing for expungement reads as follows:
24:21-28 Expunging of records of young offenders placed on probation.
After a period of not less than 6 months, which shall begin to run immediately upon the expiration of a term of probation imposed upon any person under this act, such person, who at the time of the offense was 21 years of age or younger, may apply to the court for an order to expunge from all official records, except from those maintained under the Controlled Dangerous Substances Registry, as established and defined in the Controlled Dangerous Substances Registry Act of 1970, all recordations of his arrest, trial and conviction pursuant to this section. If the court determines, after a hearing and after reference to the Controlled Dangerous Substances Registry, that such person during the period of such probation and during the period of time prior to his application to the court under this section has not been guilty of any serious or repeated violation of the conditions of such probation, it shall enter such order. The effect of such order shall be to restore such person, in the contemplation of the law, to the status he occupied prior to such arrest and trial. No person as to whom such order has been entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of his failures to recite or acknowledge such arrest or trial in response to any inquiry made of him for any purpose. [emphasis supplied]
It appears that the statute requires that expungement be granted only where a defendant had been ...