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Ulinsky v. Avignone

Decided: March 10, 1977.

RONALD ULINSKY, PLAINTIFF-RESPONDENT,
v.
ELLEN AVIGNONE AND MRS. FRANK AVIGNONE, DEFENDANTS-APPELLANTS



Bischoff, Morgan and Furman. The opinion of the court was delivered by Morgan, J.A.D.

Morgan

In this malicious prosecution action defendants challenge a trial court order denying them access to records concerning plaintiff's arrest, detention and trial which had been expunged at plaintiff's request pursuant to N.J.S.A. 2A:85-17(b). We granted defendants' leave to appeal.

The facts pertinent to this appeal exist without material dispute. Defendants caused plaintiff's arrest when they filed a complaint in the Bloomfield Municipal Court charging him with indecent exposure in violation of N.J.S.A. 2A:115-1. Although there is some dispute as to whether the police investigation preceded or followed the filing of the complaint, there is no question but that it was filed and that plaintiff was arrested as a result. The ensuing municipal court trial, which took place on December 19, 1974 and January 23, 1975, resulted in plaintiff's acquittal.

During the spring of 1975 plaintiff applied to the Bloomfield Municipal Court for an order expunging all records pertaining to his arrest, detention and trial. No law enforcement authority objected to the granting of the application and on July 16, 1975 an order expunging all of the records pertaining to this matter was granted.

Several months later, in November 1975, plaintiff filed his Superior Court complaint alleging that defendants, Ellen Avignone, an infant, and Mrs. Frank Avignone, her mother, "falsely, maliciously and without reasonable and probable cause" charged plaintiff with the offense for which he was later tried and acquitted. Substantial money damages were sought as a result of the alleged injury to plaintiff's reputation and good name, forced change of employment and the

necessity to expend monies in defense of the disorderly persons offense of which he was accused.

After they filed an answer to the complaint defendants successfully obtained from plaintiff's attorney the transcript of one of the two days of trial, copies of defendants' statements and one of Theresa Limongello, copies of defendants' complaint against plaintiff, and the arrest and incident report of the Bloomfield police. Contending, however, that these records were not complete -- lacking one day of trial, the police investigation, interviews with witnesses, and other records of which they may not have knowledge -- defendants moved before the municipal court judge, who had expunged the records at plaintiff's request, for production of all of the records and a complete trial transcript. The application was denied, the municipal judge taking the position that it lacked jurisdiction to grant the requested relief.

A motion in the Superior Court was next filed, again seeking production of all of the records pertaining to plaintiff's arrest, detention and trial. That application was also denied, reluctantly, and on the same grounds, that the court lacked jurisdiction to grant the requested relief. We granted defendants leave to appeal.

N.J.S.A. 2A:85-15 grants to any person acquitted of a violation of a municipal ordinance, the Disorderly Persons Law, a misdemeanor or a high misdemeanor, the right to petition for expungement of all evidence of his arrest, including evidence of detention related thereto. N.J.S.A. 2A:85-16 requires the court, by order, to fix a date for a hearing on the application for expungement and to serve a copy of the order upon the Attorney General, the prosecutor of the county wherein the court is located, the chief of police or other executive head of the police department of the municipality in which the arrest occurred, and upon the chief law enforcement officer of any other law enforcement agency of the State which participated in the arrest in question. The purpose of notifying these authorities of the pending application for expungement and the date of the scheduled hearing

thereon is to provide those agencies with the opportunity of tendering their objection to expungement. If any of the law enforcement agencies notified object, expungement is denied, but the records may be sealed, in which case their content may be released upon motion and for good cause shown, and then only in accordance with the limitations set forth in the order. N.J.S.A. 2A:85-18(b). If, however, no objection is received from law enforcement authorities, the court may order ...


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