Before Judges Baime, Brochin and Eichen.
The opinion of the court was delivered by: Eichen, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 5, 2000
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
This is an appeal from an order of the Law Division denying N.W.'s (petitioner) petition to expunge the record of a criminal conviction entered on July 9, 1976 for "carnal abuse" under repealed statute N.J.S.A. 2A:138-1. The order was entered pursuant to N.J.S.A. 2C:52-1 to -32 (the expungement statute). Petitioner applied for expungement of the conviction under N.J.S.A. 2C:52-2b, arguing that because the Legislature did not include the crime of "carnal abuse" in the list of ineligible crimes in that section of the statute, its intent was to allow its expungement. The Law Division judge disagreed and denied his petition. We reverse.
The facts are simple and uncontroverted.
On October 3, 1975, petitioner was charged on Indictment 64-75 with the following crimes:
Count one charged that on January 8, 1975, petitioner "did forcibly against the will of S.W. ravish and carnally know her"; count two charged that petitioner "unlawfully and carnally abuse[d] S.W." Petitioner pleaded not guilty to both counts. On April 26, 1976, petitioner withdrew his not guilty plea to count two and entered a plea of guilty to carnal abuse. *fn1 Thereafter, the State dismissed count one. The judge sentenced petitioner to serve an indeterminate term at the Youth Correctional Institutional Complex, waiving "the five year maximum" sentence and imposing a "ten year maximum" sentence. The judge immediately suspended the sentence and placed petitioner on probation for a period of two years. Petitioner was twenty-two years old at the time the crime was committed. The victim was fifteen years old.
On September 29, 1998, petitioner filed a verified petition for expungement of his conviction for "carnal abuse."
N.J.S.A. 2C:52-2a sets forth the general rule governing expungement of crimes in this State as follows:
In all cases, except as herein provided, 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, 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 ... present a duly verified petition ... praying that such conviction and all records and information pertaining thereto be expunged. [N.J.S.A. 2C:52-2a.]
N.J.S.A. 2C:52-2b contains exceptions to the general rule, listing the crimes which are not eligible for expungement. See Application of R.C., 292 N.J. Super. 151, 153 (Law Div. 1996). That section consists of two unnumbered paragraphs. The first paragraph contains a list of ineligible pre-Code crimes, while the second paragraph contains ineligible Code *fn2 offenses.
N.J.S.A. 2C:52-2b provides in relevant part as follows:
Records of conviction pursuant to statutes repealed by this Code for the crimes of murder, manslaughter, treason, anarchy, kidnapping, rape, forcible sodomy, arson, perjury, false swearing, robbery, embracery, or a conspiracy or an attempt to commit any of the foregoing, or aiding, assisting or ...