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State v. Dylag

Decided: June 29, 1993.

STATE OF NEW JERSEY, PLAINTIFF,
v.
ROBERT PAUL DYLAG, DEFENDANT



Berman, J.s.c.

Berman

"Only painters and lawyers can change white to black." Rufus Choate.

Defendant has charted a most unusual and nimble course in his quest to expunge a municipal court conviction. The issue he raises by that singularly unique path, based on the submissions of counsel, further appears to be res nova: may an individual obtain the benefits of a conditional discharge at the municipal level, vacate it thirteen years later when it becomes an impediment to pretrial intervention (hereinafter referred to as "PTI") at the indictable level, and then expunge sequentially the indictable arrest and the municipal conviction? To fully understand this query, the undisputed factual scenario compels recitation.

On August 8, 1974, the defendant was arrested in Perth Amboy, and charged with the disorderly persons offense of possession of marijuana under twenty-five grams, in violation of N.J.S.A. 24:21-20(a)(3). The defendant received a "conditional discharge" on September 30, 1974, and successfully completed that program on April 28, 1975.

Fast forwarding to March 26, 1987, the defendant was arrested in Carteret for possession of CDS (i.e., controlled dangerous substance), tampering with physical evidence, and hindering his own apprehension. Since the Perth Amboy conditional discharge precluded admission into PTI on this indictable incident, the defendant, with a large assist from creative and highly skilled counsel, applied for and successfully vacated it on February 29, 1988, entered a plea of guilty, and was fined $100.00 and assessed $10.00 court costs. Parenthetically, this court can only speculate on what authority existed, if any, for the defendant to vacate a 1974 order over thirteen years later merely because it happened to serve his purposes. He received the conditional discharge, completed it, and then vacated it on authority that was questionable at best, non-existent at worst. So much said for the doctrine of "finality" of litigation. In any event, having removed the impediment to PTI, he received that; then having completed PTI, the charges were dismissed on August 11, 1989, and expunged on September 11, 1992. Voila! All that then remained was the Perth Amboy guilty plea which the defendant now seeks to expunge.

The strategies employed by defendant to wipe the slate clean are met by obstacles contained in the provisions of N.J.S.A. 2C:52-14(f). The defendant cannot outmaneuver the statutory mandates.

Grounds for Denial of Relief. A petition for expungement filed pursuant to this chapter shall be denied when:

(a) Any statutory prerequisite, including any provision of this chapter, is not fulfilled or there is any other statutory basis for denying relief.

(f) The person seeking the relief of expungement of a conviction for a disorderly persons, petty disorderly persons, or criminal offense has prior to or subsequent to

said conviction been granted the dismissal of criminal charges following completion of a supervisory treatment or other diversion program. (N.J.S.A. 2C:52-14; emphasis supplied.)

Notwithstanding this legislative pronouncement, the defendant argues that he "would have been" entitled under the Youthful Drug Offender section to have his disorderly persons offense expunged. However, not until January 1988, in order to gain entrance into PTI, did defendant seek to have a conviction entered. Defendant could not have expunged a conviction he did not ...


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