Staller, J.c.c., Temporarily Assigned.
R.C.C., age 16, was charged on August 6, 1976 with a violation of N.J.S.A. 2A:170-5, the solicitation of unlawful sexual or indecent acts statute. At the juvenile hearing on October 29, 1976 the State was unable to present its case because the father of the alleged victim, a minor and a resident of Pennsylvania, refused to permit him to attend. The defense, which had appeared with three alibi witnesses, made a motion to dismiss for failure to prosecute. The motion was granted, and now the juvenile moves, pursuant to N.J.S.A. 2A:85-15 to 17, to expunge all records relating to his arrest. Although juvenile records are not available for public inspection under N.J.S.A. 2A:4-65, they are available to various individuals and agencies enumerated in the statute, including anyone who obtains a court order for good cause shown.
N.J.S.A. 2A:85-17 authorizes a court to order expungement of all records concerning an arrest or acquittal where "there is no objection from * * * law enforcement agencies * * * and no reason appears to the contrary * * *." N.J.S.A. 2A:85-17. The statute entitles any "person" to so petition the court. N.J.S.A. 2A:85-15. No objection to the expungement has been received from any law enforcement agency.
The only question for decision is whether a reason justifying the denial of the petition is found in N.J.S.A. 2A:4-67. That statute authorizes records to be sealed by order of the Juvenile and Domestic Relations Court after a lapse of two years during which the juvenile is not convicted of a crime. The question, then, becomes whether the fact that a juvenile has available the sealing remedy written specifically for youthful offenders found in N.J.S.A. 2A:4-67 precludes him from availing himself of the expungement relief found in N.J.S.A. 2A:85-17.
N.J.S.A. 2A:4-67 has been interpreted by one commentator as only applying where a juvenile has been adjudged delinquent or in need of supervision. "Expungement and Sealing of Arrest and Conviction Records: the New Jersey
Response," 5 Seton Hall L. Rev. 864, 887 (1974). The language of N.J.S.A. 2A:4-67(a) (1) itself weighs somewhat on the side of such an interpretation, including instances such as this one where a charge is dismissed:
(a) * * * the juvenile and domestic relations court may vacate its order and findings and order the nondisclosure of * * * records of the court * * * of law enforcement agencies if it finds:
(1) Two years have elapsed since the final discharge of the person from legal custody or supervision, or 2 years have elapsed after the entry of any other court order not involving custody or supervision * * *.
An order of the court which does not involve custody or supervision could very well be an order dismissing charges for failure to prosecute. But the remaining portions of the statute refer exclusively to conviction records. For example, N.J.S.A. 2A:4-67(b), in dealing with the records of juveniles who intend to enlist in the armed forces, refers to cases "wherein an adjudication has been entered upon the status of a juvenile * * *." (emphasis supplied). Or N.J.S.A. 2A:4-67(d), concerning the effect of a sealing order:
Upon the entry of the order, the proceedings in the case shall be sealed and all index references shall be marked "not available" or "no record" and law enforcement officers and departments shall reply and the person may reply to any inquiry that there is no record with respect to such person, except that records may be maintained for purposes of prior offender status. [Emphasis supplied]
Overall, the purpose of the sealing statute is to deal with conviction records.
Furthermore, as petitioner points out, the net effect of interpreting N.J.S.A. 2A:4-67 to apply to both convictions and dismissals is to leave minors only to the lesser remedy of the sealing of records. Cf. State v. Campobasso , 125 N.J. Super. 103 (Law Div. 1973) (expanding the scope of N.J.S.A. 24:21-28 to include young offenders under the Controlled Dangerous Substances Act ...