June 28, 2007
IN THE MATTER OF THE APPLICATION OF B.C.K. FOR EXPUNGEMENT
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Accusation No. 92-04-228A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 9, 2007
Before Judges Parker and C.S. Fisher.
B.C.K. appeals from an order entered on June 16, 2005 denying his petition to expunge his conviction for fourth degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(3). He was sentenced on June 8, 1992 to a one-year probationary term.
On July 1, 2004, appellant made an application to expunge his record pursuant to N.J.S.A. 2C:52-1 to -32. In his petition, he reported a New York State conviction in September 1992 for "attempted" possession of CDS, for which he was sentenced to a probationary term of five years.
In the expungement proceeding, appellant argued that the New York conviction was a "class A misdemeanor," which he claimed is the equivalent of a disorderly persons offense in New Jersey. He also argued that the two offenses were part of a "spree" and should be viewed as a single offense. Appellant was arrested in New York on March 28, 1991, after acquiring marijuana from a friend at a Grateful Dead concert in Nassau County. He was arrested in New Jersey on December 21, 1991 for possession of marijuana plants that had been growing for about nine months -- from seeds acquired at the Grateful Dead concert in New York nine months earlier. Thus, appellant claims the two offenses resulted from a single "spree."
During the expungement hearing, Judge Phillip Paley found that the two offenses, committed nine months apart in two different states, constituted two separate crimes. With respect to appellant's argument that the New York offense was the equivalent of a misdemeanor in New Jersey, Judge Paley determined that since the New York offense was subject to a term of imprisonment in excess of six months, it was equivalent to a fourth degree indictable offense in New Jersey and, thus, qualified as a crime. Consequently, the application for expungement was denied.
In this appeal, appellant argues:
EXPUNGEMENT PETITION MAY BE GRANTED, BECAUSE A PRIOR DISORDERLY PERSON'S OFFENSE DOES NOT BAR EXPUNGEMENT OF A SUBSEQUENT CRIMINAL OFFENSE
EVEN IF THE N.Y. OFFENSE IS CONSIDERED A CRIME, THE EXPUNGEMENT PETITION MAY STILL BE GRANTED, BECAUSE TWO CRIMINAL ACTS MAY BE FOUND TO CONSTITUTE A "ONE-TIME OFFENSE" FOR EXPUNGEMENT PURPOSES
A) APPLICABLE SECTIONS OF THE CURRENT EXPUNGEMENT STATUTE IN LIGHT OF THE CASE LAW INTERPRETATIONS
B) FURTHER DISCUSSION OF THE EXPUNGEMENT HEARING TRANSCRIPTS
C) A COMPARISON OF THE FACTORS IN FONTANA*fn1 VERSUS THE CURRENT PETITION; AND ADDITIONAL RELEVANT FACTORS THAT DEMONSTRATE HOW THE CURRENT PETITION REPRESENTS A "ONE-TIME OFFENSE"
D) STATUTORY AND PUBLIC POLICY IMPLICATIONS
We have carefully considered the record in light of appellant's arguments and the applicable law and we are satisfied that appellant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Judge Paley was correct. The petition for expungement should not be granted when the applicant has been convicted of two separate offenses. State v. King, 340 N.J. Super. 390, 393-94 n.1, 398 (App. Div. 2001); State v. Ochoa, 314 N.J. Super. 168, 172-73 (App. Div. 1998); In re N.A., 218 N.J. Super. 547, 548-49 (App. Div. 1987); In re F.A.U., 190 N.J. Super. 245, 247 (App. Div. 1983). Accordingly, we affirm substantially for the reasons stated by Judge Paley on the record of June 10, 2005.