[188 NJSuper Page 533] This petition for expungement of two related pre-Code convictions for incestuous conduct is brought under the authority of the New Jersey Code of Criminal Justice (Code), N.J.S.A. 2C:52-1 et seq.
The facts are simple and uncontroverted. On November 1, 1957 petitioner pleaded non vult to two Morris County indictments, each of which charged a violation of N.J.S.A. 2A:114-2.*fn1 He was sentenced to serve not less than one nor more than two years in State Prison on each indictment, with the sentences to run concurrently. The custodial sentences were immediately suspended and he was placed on probation for two years, subject to the standard conditions and with the special condition of receiving psychiatric treatment. On January 19, 1960 he was discharged from probation as improved, having complied with all the conditions of his probationary sentence.
Petitioner is now 54 years old. He has never been granted expungement, sealing or similar relief regarding a criminal conviction. There are no charges pending now, nor has defendant had any involvement with the criminal justice system in any fashion at any time, either before or after the two 1957 convictions.
Expungement for pre-Code offenses is governed by the Code. N.J.S.A. 2C:52-25 specifically provides that the Code expungement chapter applies to convictions which occurred prior to September 1, 1979. Thus, petitioner's eligibility for expungement must be tested by reference to the applicable sections of N.J.S.A. 2C:52-1 et seq.
The State contends that expungement cannot be granted on these facts. Its objection is based upon the second unnumbered paragraph of N.J.S.A. 2C:52-2 b, which precludes expungement
of certain designated Code offenses. N.J.S.A. 2C:52-2 b provides in its entirety as follows:
Records of conviction pursuant to statutes repealed by this Code for the crimes of murder, manslaughter, treason, anarchy, kidnapping, rape, forcible sodomy, arson, perjury, false swearing, robbery, embracery, or a conspiracy or any attempt to commit any of the foregoing, or aiding, assisting or concealing persons accused of the foregoing crimes, shall not be expunged.
Records of conviction for the following crimes specified in the New Jersey Code of Criminal Justice shall not be subject to expungement: Section 2C:11-1 et seq. (Criminal Homicide), except death by auto as specified in section 2C:11-5; section 2C:13-1 (Kidnapping); sections 2C:14-2 (Aggravated Sexual Assault); section 2C:15-1; (Robbery); section 2C:17-1 (Arson and Related Offenses); section 2C:28-1 (Perjury); section 2C:28-2 (Perjury; section 2C:28-2 (False Swearing) and conspiracies or attempts to commit such crimes.
Since a conviction for aggravated sexual assault cannot be expunged, the State's position is that neither should a pre-Code conviction of the congruent offense of incestuous conduct.
Petitioner contends that he may be denied expungement only if his convictions were for one of the pre-Code crimes which are collected in the first unnumbered paragraph of N.J.S.A. 2C:52-2 b. For the reasons hereafter stated, I find that the first, not the second, unnumbered paragraph of N.J.S.A. 2C:52-2 b controls.
The Legislature has specified those pre-Code crimes ineligible for expungement. Of course, all of these pre-Code offenses have been repealed by another section of the Code. N.J.S.A. 2C:98-2. Incestuous conduct is not one of these pre-Code offenses which are offenses for which expungement is barred. Thus, incestuous conduct is one of the offenses which is repealed ...