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In re Applegate

Decided: January 24, 1979.

IN RE EDWARD A. APPLEGATE (EXPUNGEMENT)


On appeal from the Superior Court of New Jersey, Law Division, Essex County.

Ard and Antell. The opinion of the court was delivered by Ard, J.A.D.

Ard

Appellant, Edward A. Applegate, appeals the denial of his petition for expungement made pursuant to N.J.S.A. 2A:85-15 et seq. The sole issue on appeal is whether the provisions of N.J.S.A. 2A:85-15 et seq. permit the trial judge, in the exercise of his discretion, to deny an expungement petition even in the absence of law enforcement objection.

Complaints of assault and battery and larceny were filed against appellant. The complaints were subsequently withdrawn, and an order of dismissal was entered. Thereafter, appellant filed for expungement pursuant to the aforementioned statute. A hearing was ordered. Objections filed by the Attorney General and the Essex County Prosecutor were withdrawn.

Thereafter, an expungement hearing was held, and after holding the matter under advisement to allow appellant to file a brief on the matter, the trial judge denied the petition in a letter opinion.

In his opinion, the trial judge stated in pertinent part:

This court is attempting to preserve the record in the event a a further expungement petition by this petitioner is filed in the future. Assuming that petitioner is able to expunge all records subsequent to his 1972 criminal conviction, he would prima facie be eligible to have that conviction expunged in 1982. The judge hearing that petition would be completely unaware of the preceding expungements which had taken place. It is just this concern which caused

the court in State v. Petti , 142 N.J. Super. 283, 287 (App. Div. 1976) to state:

"Absent a specific statutory directive, a construction of N.J.S.A. 2A:164-28 which would blindfold the trial judge to petitioner's conduct which has a bearing on the purposes for which the statute was enacted would be violative of the legislative intent."

The record of this arrest should be retained until such time as petitioner is entitled to expunge the balance of his record as indicated in Petti.

Thereafter, a rehearing was held at which time the trial judge again denied the ...


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