On appeal from the Superior Court, Law Division, Ocean County.
Matthews, J. H. Coleman and Gaulkin. The opinion of the court was delivered by Gaulkin, J.A.D.
Defendant appeals from an order denying his petition to expunge a disorderly persons conviction.
The facts are not in dispute. On October 1, 1973, defendant was convicted in Ocean County of possession of less than 25 grams of marijuana, a disorderly persons offense. On November 27, 1974, he was convicted in Monmouth County of fighting, another disorderly persons offense. On July 16, 1976, he was again convicted in Monmouth County of possession of less than 25 grams of marijuana. Defendant has no other convictions.
Defendant filed a petition in the Law Division, Monmouth County, to expunge the two Monmouth County convictions pursuant to N.J.S.A. 2C:52-1 et seq. No objection was made by any party served with notice, N.J.S.A. 2C:52-10, and an order expunging the convictions was accordingly entered on July 30, 1982. N.J.S.A. 2C:52-11.
Defendant then filed a similar petition in the Law Division, Ocean County, to expunge the Ocean County conviction. The Ocean County Prosecutor opposed the application on behalf of the Attorney General and the State Police, arguing that the statute "would militate against two expungements. . . ." The hearing judge denied the petition because
I think you are asking me now to provide relief to a three-time offender and I don't think I can do that.
Defendant appeals from the order thereupon entered. We conclude that the trial judge erred in his reading of the statute and accordingly reverse.
The parties agree that N.J.S.A. 2C:52-3 governs defendant's expungement application:
Any person convicted of a disorderly persons offense or petty disorderly persons offense under the law of this State who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, or of another three disorderly persons or petty disorderly persons offenses, may, after the expiration of a period of 5 years from the date of his conviction, payment of fine, satisfactory completion of probation or release from incarceration, whichever is later, present a duly verified petition as provided in section 2C:52-7 hereof to the Superior Court in the county in which the conviction was entered praying that such conviction and all records and information pertaining thereto be expunged.
Defendant persuasively argues that since his petition showed that he had not been convicted of any prior or subsequent crimes or of "another three disorderly persons or petty disorderly persons offenses," the petition should have been considered on its merits. See N.J.S.A. 2C:52-14. The State does not dispute that defendant's application satisfied the conditions specified in N.J.S.A. 2C:52-3, but contends that N.J.S.A. 2C:52-32 implies that expungement of more than one disorderly persons conviction is barred:
This chapter shall be construed with the primary objective of providing relief to the one-time offender who has led a life of rectitude and disassociated himself with unlawful activity, but not to create a system whereby periodic violators of the law or those who associate themselves with criminal ...