Allcorn, Morgan and Horn. The opinion of the court was delivered by Horn, J.A.D.
In this case the trial judge accepted from defendant a negotiated plea of guilty to possession of more than 25 grams of marijuana (N.J.S.A. 24:21-20[a]). At the time of said offense defendant was under 21 years of age. On June 25, 1973 the judge sentenced defendant as follows:
After defendant was incarcerated for 12 days in the county jail, he was released on two years' probation. On August 1,
1977, more than six months following his two-year probation period, which he underwent without undue incident, he applied to the County Court for an order expunging the record of his conviction, pursuant to N.J.S.A. 24:21-28. After a hearing the judge denied the application by reason of his interpretation of N.J.S.A. 24:21-28 as precluding expungement thereunder for anyone who has served any interval of incarceration as a result of the proceedings sought to be expunged. Defendant assails this interpretation through this appeal.
N.J.S.A. 24:21-28 provides:
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 records 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 failure to recite or acknowledge such arrest or trial in response to any inquiry made of him for any purpose.
Although the statute is silent as to incarceration, the trial judge reasoned that to interpret the statute as applicable to one whose sentence included incarceration followed by probation would lead to an anomalous situation. In his view, where a person was sentenced to a similar term of incarceration without a probationary period to follow, such a person would not be eligible to have his record expunged
under this statute. We recognize the judge's dilemma by reason of this ratiocination.
The State does not agree with the judge's interpretation of the statute insofar as a "partially suspended" sentence to a county institution, followed by probation, is concerned. See N.J.S.A. 2A:164-16. The State feels that the sentence imposed in this case was illegal but suggests that, at this point, S. should be treated as if he received a "partially suspended" sentence to the Atlantic County Jail, followed by probation. As will be shown hereinafter, the sentence as imposed by a different judge was an illegal one. But, irrespective of its illegality, we agree with defendant and the State that a fair interpretation of the statute, N.J.S.A. 24:21-28, authorizes expungement in this case.
Defendant, as already noted, was under 21 years of age when he committed the offense for which he was convicted. He has served his period of probation without having been "guilty of any serious or repeated violation of the conditions of such probation." The expungement which he seeks will enable him to engage in an occupation which is closed to him so long as his conviction record is extant. N.J.S.A. 24:21-28 "is specifically aimed at providing an incentive for rehabilitation of a person convicted of crime, and its purpose will be advanced by a construction which authorizes expungement under the circumstances here present." In re Fontana , 146 N.J. Super. 264, 267 (App. Div. 1976) (dealing with a different expungement statute. N.J.S.A. 2A:164-28).
When N.J.S.A. 24:21-28 was enacted in 1970 "split" sentences (suspension of a portion of a term of a custodial sentence) followed by a period of probation were permitted under N.J.S.A. 2A:164-16.*fn1 It will be presumed ...