July 17, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
IN THE MATTER OF EXPUNGEMENT PETITION OF N.R.O.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. 91-05-02601.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 23, 2007
Before Judges Cuff and Fuentes.
N.R.O. appeals from the order of the Law Division denying his petition for expungement of his 1992 conviction for fourth- degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). We affirm.
Petitioner was sentenced to a three-year term of probation, conditioned on performing 300 hours of community service, and having no contact with the victim. At the time he committed this crime, petitioner was a licensed dentist. After his conviction, he entered into a consent order with the New Jersey Board of Dentistry, in which he acknowledged that he committed a crime of moral turpitude relating adversely to the dental profession. N.J.S.A. 45:1-21(f). Specifically, he prescribed narcotic medication for purposes unrelated to the practice of dentistry. His license as a dentist was suspended for five years.
The original indictment against petitioner listed seven counts involving sexual misconduct with children, including second-degree sexual assault. Among the child victims involved was the eleven-year-old daughter of the woman who received the improperly prescribed narcotic medication.
Petitioner filed this expungement petition on April 2005, more than ten years after the date of his conviction. On May 13, 1992, the Legislature amended N.J.S.A. 2C:24-4(a) (the statute defining the crime petitioner pled guilty to), upgrading it from a fourth-degree offense, to a third-degree offense. The amendment also resulted in subjecting those convicted of the third-degree offense to comply with the reporting and registration requirements of Megan's Law, N.J.S.A. 2C:7-1 to 7-11.
At the expungement hearing, the State objected arguing that under the plain language of N.J.S.A. 2C:52-2(b), petitioner was not eligible for the relief requested. That statute prohibits the expungement of records for a conviction of endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Independent of this mandate, the State also urged the trial court to use its discretion under N.J.S.A. 2C:52-14(b), and find that the need for the availability of the records "outweighs the desirability of expungement."
In response, petitioner argued that the statutory bar in N.J.S.A. 2C:52-2(b) was not applicable to him, because the Legislature enacted this statutory bar subsequent to his conviction. As to the discretionary authority conferred by N.J.S.A. 2C:52-14(b), petitioner argued that the balance of equities militated in favor of granting the relief requested.
Judge Kennedy rejected petitioner's argument. In a well-reasoned memorandum of opinion, Judge Kennedy reviewed and analyzed the pertinent law on the subject, and noted that until an expungement petition is filed, expungement is merely an inchoate expectation and not a vested right. That being so, the Legislature is free to amend expungement laws [as] it sees fit and Courts must construe and apply the law in existence when an expungement petition is filed.
Petitioner now appeals from this ruling raising the following arguments.
THE MEGAN'S LAW AMENDMENTS TO THE EXPUNGEMENT CHAPTER OF THE CRIMINAL CODE DO NOT APPLY TO OFFENDERS CONVICTED BEFORE THE ENACTMENT NOT DEEMED TO HAVE ENGAGED IN REPETITIVE AND COMPULSIVE CONDUCT.
THE COURT COMMITTED REVERSIBLE ERROR IN RELYING UPON RECORDS PERTAINING TO THE CONVICTION PETITIONER SEEKS TO EXPUNGE IN DETERMINING THAT THE STATE'S NEED FOR AVAILABILITY OF RECORDS OUTWEIGHED THE DESIRABILITY OF EXPUNGING DEFENDANT'S CRIMINAL RECORD.
We reject these arguments and affirm substantially for the reasons expressed by Judge Kennedy in his memorandum of opinion dated March 31, 2006.
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