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In re Expungement of Criminal Record of M. D. Z.

December 14, 1995


On appeal from the Superior Court of New Jersey, Law Division, Bergen County.

Approved for Publication December 14, 1995.

Before Judges Dreier, Kestin and Cuff. The opinion of the court was delivered by Kestin, J.A.D.

The opinion of the court was delivered by: Kestin

The opinion of the court was delivered by KESTIN, J.A.D.

Petitioner applied for an order of expungement pursuant to statute, N.J.S.A. 2C:52-1 to -32. After a hearing, the trial court entered an order providing that all records relating to criminal charges arising from a June 9, 1992 arrest of petitioner be expunged. The order also granted the State's motion to dismiss the petition for expungement as it pertained to a domestic violence case arising from the same incident, and to a related matrimonial action. Petitioner appeals from the latter provision. We affirm.

On June 9, 1992, Hackensack police officers responded to a report of a domestic incident in the apartment occupied by petitioner and his spouse. They received a report from the spouse, Mrs. Z, that petitioner had threatened her with a gun and the statement "I'm going to kill you." The police officers seized three firearms - two registered pistols and an unregistered assault rifle - along with ammunition and some large capacity ammunition magazines. They arrested petitioner, and charged him in criminal complaints with making a terroristic threat, a third degree crime; unlawful possession of an assault firearm, also a third degree crime; and unlawful possession of several large capacity ammunition magazines, a fourth degree crime.

On the same date, pursuant to a domestic violence complaint filed by Mrs. Z, a temporary restraining order was issued barring petitioner from the marital residence. A week later, Mrs. Z also filed a complaint for divorce. On July 14, 1992, the parties entered into a consent order in the matrimonial case, inter alia, extending the restraint on petitioner from entering the marital residence.

By early September, Mrs. Z had withdrawn the domestic violence complaint and the State, at her behest, withdrew the terroristic threat charge. By the end of September, the parties had filed a stipulation dismissing the matrimonial action. They had reconciled. Subsequently, petitioner and the State agreed that in exchange for petitioner's surrender of the unregistered assault rifle, the two registered pistols would be returned to him, and the unlawful possession complaint would be dismissed.

Finally, in June 1994, petitioner moved for expungement of all records relating to the criminal complaints, the domestic violence matter, and the matrimonial action. The State agreed to the expungement request in respect of the criminal complaints, but objected to any expungement relative to the domestic violence matter or the matrimonial action. As we have noted, the trial court granted the relief sought in the expungement petition only as to the criminal charges, holding that the statutory policy of expunging records connected with criminal charges or convictions does not extend to non-criminal matters such as domestic violence proceedings or matrimonial actions.

After reviewing the record in the light of the arguments advanced by the parties, we are in substantial agreement with the bases of decision articulated by Judge Jonathan N. Harris in his on-the-record opinion of September 8, 1994. We add some words of elaboration.

In a recent case, In the Matter of the Petition of Anthony Podias, N.J. Super. , , 666 A.2d 209 (App. Div. 1995) (slip op. at 4-5), we interpreted the breadth of the expungement statute, N.J.S.A. 2C:52-1 to -32, by relying on the principle of statutory construction articulated by the Supreme Court in State v. Churchdale Leasing Inc., 115 N.J. 83, 101, 557 A.2d 277 (1989): "when a statute is clear on its face, a court need not look beyond the statutory terms to determine the legislative intent. State v. Butler, 89 N.J. 220, 226, 445 A.2d 399 (1982)." A reading of the expungement statute discloses an expressed design to deal only with criminal charges and their consequences. Even the definition of expungement is so restricted.

Except as otherwise provided in this chapter, expungement shall mean the extraction and isolation of all records on file within any court, detention or correctional facility, law enforcement or criminal Justice agency concerning a person's detection, apprehension, arrest, detention, trial or Disposition of an offense within the criminal Justice system. (emphasis supplied).

[N.J.S.A. 2C:52-1a.]

The statute goes on to include within its scope "all cases [except for specified matters] wherein a person has been convicted of a crime under the laws of this State and who has not been convicted of any prior or subsequent crime...." N.J.S.A. 2C:52-2a. Where offenses not traditionally considered "crimes" have been seen to carry consequences that ought to be subject to expungement, the Legislature has expressly provided for such treatment. See, e.g., N.J.S.A. 2C:52-3 (disorderly persons and petty disorderly persons offenses); -4 (violations of municipal ordinances); -4.1 (juvenile delinquency). The Legislature has also provided for expungement in respect of crimes otherwise excluded from the scope of the statute where particular characteristics exist, N.J.S.A. 2C:52-5 (records of young drug offenders), and for arrests "for a crime, disorderly persons offense, petty disorderly persons offense or municipal ordinance violation" where a conviction did not result ...

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