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In re Application of N.A. for Expungement of Records

Decided: July 8, 1987.

IN RE THE MATTER OF THE APPLICATION OF N.A. FOR EXPUNGEMENT OF RECORDS


On appeal from Superior Court, Law Division, Essex County.

Antell, Brody and D'Annunzio. The opinion of the court was delivered by, Antell, P.J.A.D.

Antell

Petitioner appeals from an order of the Law Division dated November 12, 1986 denying his application for an order expunging the record of his conviction for receiving stolen property, N.J.S.A. 2A:139-1, entered in May 1975. The application was made under N.J.S.A. 2C:52-2a which authorizes such relief after ten years so long as the petitioner "has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction. . . ."

Petitioner's application was denied by the Law Division on the ground that he had pled guilty on April 26, 1985, to a federal charge of causing a bank to fail to file a currency transaction report in violation of 31 U.S.C.A. § 5313(a). According to petitioner, the maximum punishment applicable thereto under 31 U.S.C.A. § 5322(a) was a sentence of one year imprisonment and/or a fine of $1000. Neither the State nor the petitioner has furnished us with details as to the time and circumstances of the federal violation, and for purposes hereof we assume that petitioner's statement of the applicable penalty is correct.*fn1

The question presented on this appeal is whether the federal conviction was for a subsequent "crime" within the meaning of

N.J.S.A. 2C:52-2. Petitioner points out that the punishment provided by the New Jersey Code of Criminal Justice for crimes of the fourth degree, our lowest grade of crime, is a maximum of 18 months imprisonment, N.J.S.A. 2C:43-6a(4), and/or a fine of $7,500, N.J.S.A. 2C:43-3b. Because the punishment provided for by the federal statute is substantially less, he argues that for expungement purposes it should be regarded as the equivalent of a disorderly persons offense under our Code and not as a crime.

Petitioner's argument overlooks the fact that although the maximum custodial punishment for our lowest grade of crime is 18 months imprisonment, N.J.S.A. 2C:1-4 specifically recites that any New Jersey statutory offense "for which a sentence of imprisonment in excess of 6 months is authorized, constitutes a crime within the meaning of the Constitution of this State." Moreover, for sentencing purposes N.J.S.A. 2C:44-4c provides that "[a] conviction in another jurisdiction shall constitute a prior conviction of crime if a sentence of imprisonment in excess of 6 months was authorized under the law of the other jurisdiction." Prior to the enactment of that legislation our Supreme Court applied the same standard in State v. Owens, 54 N.J. 153, 160 (1969), cert. den. 396 U.S. 1021, 90 S. Ct. 593, 24 L. Ed. 2d 514 (1970). It would appear, therefore, that where the question has been addressed in this state, either by the courts or the legislature, the determination has been made that offenses punishable by more than 6 months imprisonment are regarded as crimes. Although those determinations do not directly control this situation, our study of outside material compels the belief that the expungement statute should be read consistently therewith to contemplate a subsequent crime as an offense entailing possible imprisonment for more than six months. On this basis we conclude that petitioner's federal misdemeanor conviction bars his claim for relief.

In In re Buehrer, 50 N.J. 501, 517-518 (1967) the Supreme Court differentiated between crimes and lesser offenses by noting that prosecutions for the former were accompanied by

the constitutional guarantees of indictment and trial by jury whereas lesser offenses, which did not carry the stigma, the disabilities or the severe penalties attendant upon a conviction for crime, were not the subject of indictment and trial by jury. As the Court further explained in State v. Maier, 13 N.J. 235, 250-251 (1953), in prosecutions for disorderly conduct a defendant was spared

In the federal jurisdiction punishable offenses are classified under 18 U.S.C.A. § 1 in ...


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