On appeal from Superior Court of New Jersey, Law Division, Hudson County.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Payne and Sabatino.
This appeal involves a public employer's attempt to enforce a forfeiture of the employment of one of its employees based on his conviction of a crime after the conviction was expunged. We conclude that the expungement precludes forfeiture of the employee's position based on the conviction.
On June 28, 1991, respondent Francois Nunez pled guilty pursuant to a plea bargain to unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5(b), which is a third-degree offense. At the time of his plea, Nunez was employed by appellant City of Union City as a bilingual clerk. Under N.J.S.A. 2C:51-2(a)(1), any conviction of an offense "of the third degree or above" automatically requires the forfeiture of "any public office, position or employment" then held by the defendant. See State v. Ercolano, 335 N.J. Super. 236, 242-48 (App. Div. 2000), certif. denied, 167 N.J. 635 (2001).
On October 4, 1991, the trial court sentenced Nunez to a two-year term of probation. However, the court failed to impose the forfeiture of public employment mandated by N.J.S.A. 2C:51-2(a)(1). Neither the prosecutor nor Union City brought this failure to the court's attention.*fn1
Moreover, a member of Union City's governing body sent a letter to Nunez indicating that the City intended to continue his employment:
Please be advised that the Honorable Judge Elaine L. Davis, J.S.C. on October 7, 1991 ordered that you remain gainfully employed by the City of Union City, NJ.*fn2 Please be advised that my fellow Commissioners and I have decided to maintain you in your full time position with the City of Union City, NJ.
Trusting this communication will serve as a record for your files.
Nunez has continued to be employed by Union City as a clerk until the present day.
On October 17, 2002, Nunez filed a petition for expungement of his 1991 conviction. Nunez served copies of the petition upon the Union City Chief of Police and the Union City Municipal Court. Union City did not submit any opposition to the petition. On March 13, 2003, the court ...