On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Approved for Publication August 27, 1996.
Before Judges Kleiner and Braithwaite. The opinion of the court was delivered by Kleiner, J.A.D.
The opinion of the court was delivered by: Kleiner
The opinion of the court was delivered byKLEINER, J.A.D.
Robert J. Merendino *fn1 appeals from the denial of his petition to expunge all evidence of his arrest and subsequent June 8, 1984 conviction on two counts of an eleven count indictment. Prior to that conviction, the State moved to dismiss the remaining nine counts of the indictment pursuant to the terms of a negotiated plea agreement. Petitioner's appeal poses a question not specifically raised in any reported decision in this State: May the motion Judge at an expungement proceeding consider the underlying circumstances of the petitioner's prior arrest to determine whether the petitioner is entitled to expungement? We conclude that the motion Judge was entitled to consider all facts that were available to both the State and petitioner at the time the petitioner entered his original plea to determine if he is entitled to expungement. We therefore affirm the denial of petitioner's expungement petition.
On January 30, 1984, petitioner was indicted for the following criminal acts: three counts of distribution of marijuana, contrary to N.J.S.A. 24:21-19(a)(1) (counts one, three, and seven); four counts of possession of over twenty-five grams of marijuana, contrary to N.J.S.A. 24:21-19(a)(1) (counts two, four, eight and ten); one count of possession of marijuana with the intent to distribute, contrary to N.J.S.A. 24:21-19(a)(1) (count nine); and one count of possession of tenuate dospan (diethylpropion hydrochloride), contrary to N.J.S.A. 24:21-10(a)(1) (count eleven). *fn2
Petitioner was arrested at his home on August 31, 1983, after he sold marijuana to an undercover investigator, a member of the Bergen County Narcotics Task Force. An investigation of petitioner had commenced April 15, 1983. On that evening and on August 1, 1983, petitioner sold marijuana to the investigator at petitioner's residence. On the night of his arrest, the investigator arranged to meet petitioner at his home, intending to purchase marijuana. On that occasion, a third sale of marijuana was consummated. The investigator had previously secured a search warrant and, immediately after the sale, petitioner was arrested and charged with three counts of distribution of a controlled dangerous substance, referencing the sales of April 15, 1983, August 1, 1983 and August 15, 1983. Petitioner's home was then searched and the evidence seized led to his indictment.
Laboratory tests performed at the time of each purchase of marijuana confirmed that petitioner sold the investigator 27.2 grams of marijuana on April 15, 1983; 27.35 grams of marijuana on August 1, 1983, and 28.12 grams of marijuana on August 31, 1983. The search uncovered within petitioner's home 80.9 grams of marijuana and tenuate dospan.
Pursuant to a plea agreement, petitioner pled guilty to count three, charging distribution of a controlled dangerous substance on August 1, 1983, in violation of N.J.S.A. 24:21-19(a)(1), and to count nine, charging possession of marijuana, contrary to N.J.S.A. 24:21-19(a)(1). The State agreed to dismiss the remaining counts of the indictment. Pursuant to the agreement, petitioner was thereafter sentenced on June 8, 1984 to a two-year term of probation on each count, to be served concurrently. He was also ordered to pay an aggregate Violent Crimes Compensation Board penalty of $50.00.
Former N.J.S.A. 24:21-19(a)(1) (since repealed, L. 1987, c. 106, § 25, operative July 9, 1987), provided in pertinent part,
Prohibited Acts A. - Manufacturing, distributing, or dispensing - Penalties
a. Except as authorized by this act, it shall be unlawful for any person knowingly or intentionally:
(1) To manufacture, distribute, or dispense or to possess or have under his control with intent to manufacture, distribute, or dispense, a controlled dangerous substance . . . .
The statute did not require any proof as to the quantity of the controlled dangerous substance manufactured, distributed, ...