On appeal from the Superior Court of New Jersey, Law Division, Union County, 92-02-00174.
The opinion of the court was delivered by: A. A. RODRÍGUEZ, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, A. A. Rodríguez and Collester.
In 1992, appellant G.R. pled guilty to first degree possession of 204.34 grams of cocaine, a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(1). The judge sentenced G.R. as a second degree offender and imposed a seven-year term with an eighteen-month parole disqualifier. Subsequently, G.R.'s sentence was reconsidered and the judge resentenced him to a five-year probationary term, with a condition that he serve 180 days of in-house detention through the Union County's Wristlet Program. G.R. successfully completed this sentence and was eventually discharged from probation. He has not been arrested for or charged with any offense since then.
More than ten years after the conviction, G.R. filed a petition for expungement of criminal records pursuant to N.J.S.A. 2C:52-1 to -32. In response to the petition, the County Prosecutor brought to the judge's attention the circumstances surrounding G.R.'s arrest.
At the hearing, Judge Scott J. Moynihan noted that G.R. "is, certainly, a prime candidate for an expungement." However, the judge found a statutory bar by virtue of N.J.S.A. 2C:52-2c. That section provides:
c. In the case of conviction for the sale or distribution of a controlled dangerous substance or possession thereof with intent to sell, expungement shall be denied except where the crimes relate to:
(1) Marijuana, where the total quantity sold, distributed or possessed with intent to sell was 25 grams or less, or
(2) Hashish, where the total quantity sold, distributed or possessed with intent to sell was five grams or less.
[Ibid. (emphasis added).]
The judge made the following findings:
And in this particular case or matter I think there is abundant proof that this is a possession with intent to sell . . . case. The Grand Jury transcripts in this particular matter, from February 5, 1992, where [the Assistant Prosecutor] presented the case to the Grand Jury, shows the thorough job he did, that Officer Gallagher testified that he had planned to meet with [G.R.], he had planned to meet with him to buy a large quantity of cocaine. [G.R.] presented himself as a kilo dealer to ...