Dreier, J.d.c., Temporarily Assigned.
Defendant has appealed from a denial by the Municipal Court of his application pursuant to N.J.S.A. 2A:85-15 to expunge the record of an arrest. Since this court is of the opinion that the municipal court judge misinterpreted the provisions of the statute, and it appears that there has been no interpretation of the statute recorded since its enactment, this opinion has been reduced to writing.
Defendant was arrested on November 13, 1973 for violating N.J.S.A. 24:21-20(a)(3), possession of a controlled dangerous substance. Defendant successfully moved before the Union County Court to suppress certain evidence, and the complaint against him was dismissed. Thereafter, he moved before the municipal court to expunge the record of the arrest, but his motion was denied. The municipal court judge determined that, since the State had been deprived of its evidence on the basis of defendant's motion to suppress, defendant gave up the opportunity to have his arrest record expunged. The judge further made clear upon the record his view that defendant's counsel had an obligation not to move to suppress any evidence necessary for the State's case if defendant might later wish to have his arrest record expunged.
N.J.S.A. 2A:85-15 reads as follows:
Any person who has been arrested for a violation of the disorderly persons law, a misdemeanor or a high misdemeanor under the laws of New Jersey and against whom proceedings were dismissed, or who was discharged without a conviction, or who was acquitted, may at
any time following the dismissal of proceedings, or the discharge without a conviction, or the acquittal, present a duly verified petition to the court in which the judgment of acquittal, discharge or dismissal was entered, or, if there were no court proceedings, to the court in whose jurisdiction the arrest occurred, setting forth all the facts in the matter and praying for the relief provided by this act.
N.J.S.A. 2A:85-16 specifies the fixing of a time for hearing and service of notice upon the local police officials, the prosecutor and the Attorney General, who may object to the expungement of the record in question.
N.J.S.A. 2A:85-17(a) provides:
At the time appointed for the hearing, if there is no objection from those law enforcement agencies notified of the hearing, and no reason appears to the contrary, the court may grant an order directing the clerk of the court and the parties upon whom notice was served to expunge from their records all evidence of said arrest including evidence of detention related thereto, and specifying those records to be expunged. [Emphasis supplied]
N.J.S.A. 2A:85-17(b) provides for the procedure for the physical removal, storage and control of the expunged records.
There then appears N.J.S.A. 2A:85-18, 19 and 20, setting forth the further procedure in the event an objection is received from one of the law enforcement agencies. It is under these sections that the municipal court judge found that he had no power to expunge the arrest record, since there were "grounds for denial" as defined in N.J.S.A. 2A:85-20, namely, when the dismissal of the charge resulted "after exclusion of highly probative evidence upon invocation of an exclusionary rule not directed to the truth of the evidence excluded." On appeal, we note, however, that the issue of "grounds for denial" never arises unless an objection is made by one of the law enforcement agencies to which notice has been given. In this case, not ...