On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Matthews, Furman and Havey. The opinion of the court was delivered by Matthews, P.J.A.D.
The State appeals from an order of the Law Division expunging the arrest and conviction record of H.G.G. for a 1969 conviction of conspiracy to possess, process and manufacture narcotics in violation of N.J.S.A. 2A:8-2.
Petitioner was arrested on October 11, 1968 and charged with conspiracy, contrary to the provisions of N.J.S.A. 2A:85-1 and conspiracy to possess narcotics, contrary to the provisions of N.J.S.A. 2A:98-2. Subsequently in June of 1969, a Bergen
County Grand Jury returned an indictment on the charges of which petitioner was subsequently found guilty.
On November 1, 1973, petitioner was arrested and charged with fraud contrary to the provisions of N.J.S.A. 2A:111-15. Entering a plea of not guilty, petitioner was later found guilty of the offense as charged.
Nine years later, on February 9, 1984, petitioner submitted a verified petition pursuant to N.J.S.A. 2C:52-7 and 8, seeking to expunge the 1969 conviction for conspiracy. The petition, however, failed to comply with the provisions of N.J.S.A. 2C:52-7 and the holding in State v. DeMarco, 174 N.J. Super. 411 (Law Div.1980), in that petitioner set forth that he had never been convicted of any offense other than the conspiracy offense. Numerous arrests and charges occurring in New York and New Jersey also went unreported in the petition. N.J.S.A. 2C:52-7 sets forth the essential elements of an expungement petition:
Every petition for expungement filed pursuant to this chapter shall be verified and include:
a. Petitioner's date of birth.
b. Petitioner's date of arrest.
c. The statute or statutes and offense or offenses for which petitioner was arrested and of which petitioner was convicted.
d. The original indictment, summons or complaint number.
e. Petitioner's date of conviction, or date of disposition of the matter if no conviction resulted.
f. The court's disposition of the matter and the punishment imposed, if any. [Emphasis added.]
Although H.G.G.'s petition clearly falls short of these requirements, its inadequacy was neither addressed below nor raised on appeal.
The State Bureau of Identification (S.B.I.) in the Division of State Police objected to the expungement, citing a statutory basis for a denial. Specifically, the S.B.I. relied upon N.J.S.A. 2C:52-2(a) and 2C:52-14(a). According to S.B.I., petitioner, having more than one criminal conviction of record, was ineligible for expungement relief.
At the expungement hearing the State presented certified judgments of conviction in support of its statutory objection. No testimony or evidence was placed before the court by the petitioner to rebut the judgments of conviction which were subsequently received into evidence. Petitioner nevertheless argued that he had only one valid criminal conviction of record and was therefore eligible for expungement relief. Specifically, he claimed that since the State could not produce a written waiver of his right to an indictment and trial by jury, executed by him, the 1973 conviction was invalid and could not be used against him in the expungement proceedings. The State claimed that petitioner did execute a written waiver but was unable to produce it because all trial records of Hackensack Municipal Court are shredded after six years.
The statute under which petitioner was convicted, N.J.S.A. 2A:111-15, expressly classifies a violation as being a misdemeanor, and specifically provides for a penalty of not more than one year imprisonment and/or a fine of not more than $1,000. The code in 2C:1-4(c), classifies a violation of N.J.S.A. 2A:111-15 as a crime. Under N.J.S.A. 2A:8-22(h), a municipal court only has jurisdiction of a N.J.S.A. 2A:111-15 crime if the person charged waives indictment and trial by jury in writing:
Each municipal court, and the magistrate or magistrates thereof, shall have jurisdiction of the following crimes or offenses occurring within the territorial jurisdiction of the court, where the person charged shall in writing waive indictment and trial by jury
h. Overdrawing credit or checking account.
The trial judge recognized that a literal reading of N.J.S.A. 2C:52-3 would bar the expungement of H.G.G.'s conviction because of his subsequent 1973 conviction in Hackensack Municipal Court of an indictable offense. Nonetheless, the trial judge ignored the explicit language of N.J.S.A. 2C:52-3 and expunged petitioner's arrest and conviction ...