On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
Ard, King and McElroy. The opinion of the court was delivered by King, J.A.D.
[189 NJSuper Page 362] This appeal draws into question the constitutional validity of N.J.S.A. 2C:52-25, L. 1979, c. 178, § 132, which makes the expungement chapter of the Code of Criminal Justice retroactive in all respects. N.J.S.A. 2C:52-25 states: "This chapter shall apply to arrests and convictions which occurred prior to, and which occur subsequent to, the effective date of this act [September 1, 1979]." Appellant contends that retroactive application violates the Ex Post Facto and Due Process Clauses of the United States Constitution. The Law Division judge rejected
appellant's federal constitutional challenge to the statute. We agree with the Law Division ruling and affirm. No state constitutional challenge is articulated by appellant but our ruling would be the same if it were.
The case arises against this factual background. On October 27, 1971 defendant was arrested for two drug offenses. One offense involved sale of one brick of hashish, weighing 15.1 grams, to an undercover State Trooper for $62. A second sale involved 1.9 grams. In January 1972 defendant was indicted in Monmouth County on two charges of sale of hashish, in violation of N.J.S.A. 24:21-19. In June 1972, pursuant to a plea agreement, defendant pled guilty to two counts of possession of controlled dangerous substances and received suspended, concurrent indeterminate sentences, two years probation and a $200 fine.
Defendant thereafter satisfactorily completed his two-year probation term and led an apparently exemplary life, save for a 1974 municipal court conviction for use of loud and offensive language. He had no criminal or juvenile record prior to the hashish sales. On November 13, 1981 defendant filed a verified petition for expungement of his criminal history records.
Defendant is now 31 years old, married and a father. He has supported himself and his family over the past decade as a house painter and car salesman. His expungement application was supported by strong endorsements from reputable members of the community, including the chief of police. Defendant's expungement application was motivated by a desire to apply for a real estate agent's license so he could join his father's agency.
Defendant contends that N.J.S.A. 24:21-28 should control his right to expungement. This was the expungement section of the Controlled Dangerous Substances Act of 1970 pertinent to his violations as a young offender and in effect when defendant first became eligible for expungement in 1974. Defendant contends that as a rehabilitated young offender he was entitled to expungement as a matter of right under N.J.S.A. 24:21-28 upon completing his successful probationary term. Although
our holding here does not compel us to explore that proposition, defendant's position may have merit. The problem is that N.J.S.A. 24:21-28 was repealed by L. 1979, c. 178, § 147, effective September 1, 1979. Defendant presses his claim of a vested right to expungement under the repealed N.J.S.A. 24:21-28 because the present expungement statute relating to young drug offenders, N.J.S.A. 2C:52-5, precludes expungement where the total amount of hashish sold, distributed or possessed with intent to distribute exceeded five grams.
Our research discloses no authority to support defendant's contention that repeal of an expungement statute violates a constitutionally-protected interest. Indeed, we find little reported material of any kind on the subject.
Chapter 52 of the Code of Criminal Justice covering expungement of criminal records was adopted effective September 1, 1979 as one of the so-called "Consensus Amendments" to the Code of Criminal Justice which was initially enacted in August 1978. The legislative history discloses that by enactment of chapter 52 the Legislature intended to establish "a comprehensive statutory scheme for the expungement of criminal records," Allen, "Legislative History of Amendments to the New Jersey Code of Criminal Justice Passed Prior to the Effective Date of the Code," 7 Crim.Just.Q., 41, 48 (1980), and spell out "an equitable system of expungement of indictable and nonindictable offenses as well as of arrest records," Senate Judiciary Comm. Statement to S. 3203 (1979), reprinted at 7 Crim.Just.Q. at 72. Before the enactment of chapter 52 there was no cohesive or uniform expungement practice in our criminal justice system.
We conclude that the Legislature had a right to overhaul the statutory expungement scheme in 1979 and make the new law retroactive in the interest of uniformity and efficiency without treading on the Due Process or Ex Post Facto Clauses of the Federal Constitution. A "statutory expectation" does not "mean that in addition to the full ...