On appeal from Superior Court of New Jersey, Law Division, Monmouth County.
Approved for Publication March 5, 1997. As Corrected May 1, 1997.
Before Judges Petrella, Landau and Kimmelman. The opinion of the court was delivered by Petrella, P.j.a.d.
The opinion of the court was delivered by: Petrella
The opinion of the court was delivered by
The Monmouth County Prosecutor appeals the Law Division Judge's action in an expungement proceeding brought by respondent Emilio Blazanin. The Judge treated what was Blazanin's misdemeanor conviction under Title 2A as equivalent to a present disorderly persons offense under Title 2C. After so doing, the Judge expunged a subsequent indictable conviction. The Judge then expunged the first conviction, which he had treated as a disorderly persons offense in order to expunge the second conviction. On this appeal the State argues that the court (1) has no authority to amend a judgment of conviction for a violation of N.J.S.A. 2A:119-2 to treat it as a disorderly persons offense; (2) had no authority to "treat for expungement purposes" the misdemeanor conviction as a disorderly persons offense; and (3) erred in then also expunging the first misdemeanor conviction which it treated as a disorderly persons conviction. The central issue on this appeal is whether the Law Division may effectively amend the judgment of conviction based upon the downgrading of a Title 2A offense by Title 2C and grant a petition for expungement that would otherwise be precluded.
The facts are not in dispute. Blazanin pled guilty in Monmouth County under Indictment No. I-691-69, to petit larceny in violation of N.J.S.A 2A:119-2 on December 11, 1970. *fn1 The larceny involved the taking of two magnesium automobile wheels valued then at $120. *fn2 Blazanin was also arrested and charged with possession of marijuana in violation of N.J.S.A 24:18-4. *fn3 On January 13, 1971, Blazanin was again convicted of larceny in violation of N.J.S.A 2A:119-2, as well as burglary in violation of N.J.S.A 2A:94-1. Blazanin was sentenced to five years in the Garden State Reception and Youth Correctional Facility in Yardville, New Jersey.
Both the December 11, 1970 petit larceny offense and the January 13, 1971 larceny and burglary offenses, were prosecuted as indictable offenses under the then effective provisions of Title 2A of the New Jersey Statutes. See N.J.S.A 2A:119-2 & 2A:94-1. Effective September 1, 1979, Title 2C, the New Jersey Code of Criminal Justice, was adopted. Assuming the value of the property taken in 1971 remained constant, under N.J.S.A. 2C:20-2b(3) Blazanin's first larceny conviction would have been a disorderly persons offense if committed after September 1, 1979, as the value of the property taken would be less than $200 at the time the crime was committed. Blazanin's convictions are now twenty-seven years old and it appears that he has no other convictions and there are no charges currently pending against him. Apparently, Blazanin and his brother Vladimir are seeking expungement of their prior convictions in order to obtain firearm permits. Although Blazanin appears to have led a crime-free life since 1971, he is not eligible for expungement because he was convicted of two indictable offenses.
The State objected to the expungement proceeding in the Law Division. It takes the position that reopening old Title 2A convictions for expungement proceedings presents serious problems. The State points out that it will be impossible in many cases to determine the nature of the crime committed because of the lapse of time and the destruction of records as well as any available evidence. The State argues that State v. R.G.W., 208 N.J. Super. 60, 61, 504 A.2d 1211 (App. Div. 1986), which held that the court should apply the shorter waiting period for disorderly persons offenses because the offense was a disorderly persons offense under 2C at the time of the petition, was incorrectly decided. Alternatively, the State argues that R.G.W. is distinguishable because the court there was merely applying a new procedural rule under Title 2C to a Title 2A conviction, and N.J.S.A. 2C:1-1c allows the application of Title 2C procedural rules to pending Title 2A prosecutions.
N.J.S.A. 2C:52-2a provides that a person convicted of an indictable offense:
under the laws of this State and who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, and has not been adJudged a disorderly person or petty disorderly person on more than two occasions may, after the expiration of a period of 10 years from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later, present a duly verified petition ... to the Superior Court ... praying that such conviction and all records and information pertaining thereto be expunged.
A defendant convicted of a disorderly persons offense may seek expungement, after a five year waiting period, where they have not been convicted of a prior or subsequent indictable offense or more than three additional disorderly persons offenses. N.J.S.A. 2C:52-3. The expungement statute states in N.J.S.A. 2C:52-32 that:
This chapter shall be construed with the primary objective of providing relief to the one-time offender who has led a life of rectitude and disassociated himself with unlawful activity, but not to create a system whereby periodic violators of the law or those who associate themselves with criminal activity have a regular means of expunging their police and criminal records.
A petition for expungement will be denied where the petitioner "has had a previous criminal conviction expunged regardless of the lapse of time between the prior expungement, or sealing under prior law, and the present petition." N.J.S.A. 2C:52-14e. Moreover, while a defendant is still eligible for expungement where he is convicted of up to three disorderly persons offenses, a defendant convicted of more than one indictable offense is precluded from obtaining expungement as to any of his convictions. N.J.S.A. 2C:52-2a; State v. A.N.J., 98 N.J. 421, 427, 487 A.2d 324 (1985); State v. H.J.B., 240 N.J. Super. 216, 220, 572 A.2d 1205 (App. Div. 1990). Noting the distinction between disorderly persons offenses and crimes, the Supreme Court concluded that, unlike the eligibility requirements for disorderly persons offenses, once a defendant is convicted of two indictable offenses no relief may be ...