[181 NJSuper Page 80] Petitioner was indicted for aggravated assault. Specifically, Indictment 134-J-79 charged that on November 19, 1979 he "did knowingly under circumstances manifesting extreme indifference to the value of human life point a firearm at or in the direction of [victim]." The alleged victim was an infant. A judgment of acquittal on a jury verdict of not guilty was
entered on June 17, 1980. An order expunging the record of this prosecution pursuant to N.J.S.A. 2C:52-1 et seq. is sought. The prosecutor has objected. The record upon which the court's decision is based consists of the verified petition for expungement, a supplemental petition for expungement, a statement in support of petition for expungement, the indictment and a judgment of acquittal, two affidavits of assistant prosecutor Campbell, both dated May 22, 1981, a written statement by petitioner consisting of 22 pages of single-spaced legal size paper (hereinafter referred to as petitioner's statement or narrative), and the record of the Trenton Psychiatric Hospital regarding petitioner's August 10, 1980 commitment. The matter has been submitted to the court on this record without testimony.
Prosecutor's objection is based upon the allegation that petitioner is mentally ill and dangerous and that the record of this prosecution should therefore be available to other law enforcement personnel with whom petitioner may become involved in the future.
N.J.S.A. 2C:52-6 authorizes the expungement of the records of prosecutions which have resulted in acquittals. However, the right to expungement is not absolute, even in the cases resulting in acquittal. N.J.S.A. 2C:52-14(b) provides that expungement shall be denied when "the need for the availability of the records outweighs the desirability of having a person freed from any disabilities as otherwise provided in this chapter." An application may be denied under this subsection only following objection of a party given notice pursuant to N.J.S.A. 2C:52-10, and "the burden of asserting such grounds shall be on the objector." The county prosecutor, as a person entitled to notice, has standing to object and to assert the applicability of subsection 14(b) as grounds for denial.
In ruling upon an expungement petition, it is the court's obligation to make specific factual findings, draw conclusions from those facts as to the establishment of criteria for granting or withholding expungement, and express the reasons
for the conclusions. See State v. King , 156 N.J. Super. 42 (App.Div.1978), decided under N.J.S.A. 2A:85-15 et seq. , the predecessor expungement statute. The State does not dispute that petitioner has made a prima facie showing of entitlement to expungement under N.J.S.A. 2C:52-6, 7 and 8(a). The sole disputed issue is the applicability of N.J.S.A. 2C:52-14(b), i.e. , whether the need for the record outweighs the purpose of expungement. The burden of establishing the factual foundation for the applicability of that subsection to deny expungement rests with the prosecutor as objector. Although the expungement chapter is silent as to the standard of proof to be applied, the Code of Criminal Justice generally requires at least a preponderance of the evidence standard when dealing with matters other than the establishment of the elements of a crime. See N.J.S.A. 2C:1-13(f), requiring preponderance of the evidence in civil actions commenced pursuant to 2C; N.J.S.A. 2C:2-6(e)(3), requiring defendant to prove termination of complicity by a preponderance of the evidence; N.J.S.A. 2C:2-12(b), requiring establishment of entrapment by a preponderance of the evidence; N.J.S.A. 2C:4-1, establishment of insanity by a preponderance; N.J.S.A. 2C:5-1(d), renunciation of criminal purpose in an attempt prosecution to be established by preponderance, and N.J.S.A. 2C:5-2(e), requiring renunciation of criminal purpose is a conspiracy prosecution to be established by a preponderance. Two sections of the Code establish a standard of "to the satisfaction of the court": N.J.S.A. 2C:1-13(d), application of the Code dependent upon the finding of a fact, and N.J.S.A. 2C:4-11, burden of prosecution to establish that defendant not a juvenile. Logically it would appear that for a fact to be established "to the satisfaction of the court" there would be at least a preponderance of evidence in support of that fact. That is the position taken in the New Jersey Penal Code, vol. II: Commentary, "Final Report of the New Jersey Criminal Law Revision Commission," 37 which states:
The standard of proof . . . i.e. , that the fact "be established to the satisfaction" of the tribunal, is intentionally ambiguous. It means at least proof by a
preponderance of the evidence but beyond that the issue is left to the courts. The variety of situations requires flexibility.
The court has found no proof burden established by the Code which is less onerous than the preponderance standard.
To deny expungement the prosecutor must establish facts from which the court can conclude that the 14(b) criteria have been established. The prosecutor must establish the facts by a preponderance of the evidence. However, since denial of expungement in the context of an acquittal would constitute an unusual exercise of judicial power, the facts established should clearly convince the ...