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In re Desiato

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 5, 2007

IN RE CRAIG S. DESIATO, PETITIONER-APPELLANT.

On appeal from Superior Court of New Jersey, Criminal Division, Morris County, EX-82-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 15, 2007

Before Judges Weissbard and Baxter.

Craig S. Desiato appeals from an order of November 16, 2006 denying, without argument, his verified petition for expungement, and an amended order of January 2, 2007, providing findings of fact and conclusions of law. The petition addressed three prior offenses. On January 10, 1982 Desiato was arrested and charged with assault, making a false report, possession of a weapon (a knife) for an unlawful purpose, and unlawful possession of a weapon. After indictment, he pled guilty to unlawful possession of a weapon, N.J.S.A. 2C:39-5(d), and on September 13, 1982 he was sentenced to probation for two years.

He was nineteen years old at the time.

Desiato's second conviction followed his arrest on July 23, 1982 for unlawful possession of alcohol by a minor and possession of less than twenty five grams of marijuana, both disorderly persons offenses. He pled guilty and on August 13, 1984 was sentenced to a fine on each charge.

Finally, on May 11, 1987, Desiato was arrested and charged with possession of marijuana with intent to distribute, possession of more than twenty five grams of marijuana, and a conspiracy to distribute marijuana. Following indictment he pled guilty to unlawful possession of marijuana and on January 22, 1988 was sentenced to a three year term of probation.

In the findings and conclusions annexed to his amended order, Judge Harper wrote:

Defendant argues that the circumstances of this case warrant relaxation of N.J.S.A. 2C:52-2(a).

Despite Defendant's best efforts, the Court finds that Defendant's application for expungement of all three (3) offenses must be denied. A record cannot be expunged if a person is convicted of a "prior or subequent crime." N.J.S.A. 2C:52-2(a). Here, Defendant has a record of two (2) indictable offenses and one (1) disorderly persons offense. The two (2) indictable offenses cannot be expunged and the presence of these offenses on Defendant's record bars expungement of the disorderly persons offense. See N.J.S.A. 2C:52-2(a). Though a more liberal reading of this statute can be called for, the Court does not find that the facts of this case warrant such an interpretation. Defendant's offenses could have been handled in different ways which may have afforded the opportunity to expunge the record, but such actions were not taken. It is not this court's role to question the decisions of prior courts that were privied to all of the evidence and testimony when entering the judgments. Therefore, the Court finds that the plain language of the statute applies to the present matter to bar Defendant's application for expungement as to all three (3) offenses.

We agree.

N.J.S.A. 2C:52-2a provides:

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, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later, present a duly verified petition as provided in section 2C:52-7 to the Superior Court in the county in which the conviction was entered praying that such conviction and all records and information pertaining thereto be expunged.

Although subsequent convictions for no more than two disorderly or petty disorderly offenses shall not be an absolute bar to relief, the nature of those conviction or convictions and the circumstances surrounding them shall be considered by the court and may be a basis for denial of relief if they or either of them constitute a continuation of the type of unlawful activity embodied in the criminal conviction for which expungement is sought.

Thus, an individual with more than one indictable conviction cannot obtain an expungement. State v. Blazanin, 298 N.J. Super. 221, 225-227 (App. Div. 1997). Similarly, N.J.S.A. 2C:52-3 bars expungement of a disorderly persons offense if the individual has a prior or subsequent indictable conviction.

Applied to the facts here, Desiato's indictable conviction cannot be expunged because of his subsequent 1987 indictable conviction, and his 1987 conviction cannot be expunged due to his 1982 conviction. The 1982 disorderly person's conviction cannot be expunged because of either the 1982 or 1987 indictable convictions.

Nevertheless, on appeal the following arguments are advanced:

I. THE COURT BELOW SHOULD HAVE CONSIDERED THE CIRCUMSTANCES PECULIAR TO PETITIONER'S CASE INSTEAD OF AUTOMATICALLY APPLYING THE STATUTORY BAR TO HIS APPLICATION FOR EXPUNGEMENT.

II. SINCE NEW JERSEY'S EXPUNGEMENT STATUTE IS REMEDIAL LEGISLATION, IT SHOULD HAVE BEEN LIBERALLY CONSTRUED.

In connection with his first point, Desiato argues that "robotic adherence to the restrictive language of N.J.S.A. 2C:52-2a should sometimes yield to the objective of removing the stigma of criminal conviction from a person whose subsequent lifestyle is devoid of the youthful indiscretions that had resulted in criminal convictions". In support of that argument he cites to Application of Fontana, 146 N.J. Super. 264 (App. Div. 1976) and Application of V.S., 258 N.J. Super. 348 (Law Div. 1992). However, both of those cases involve treating multiple convictions that arose out of conduct that took place close in time and reflected a single episode of aberrant behavior as a single conviction. That is not the case with the indictable convictions at issue here, which were separated by five years and involved different offenses.

Yet, Desiato contends that the manner in which his several convictions were handled by his then attorneys supports a flexible interpretation of the statute. Thus, he suggests that he should have been offered pre-trial intervention in connection with his 1982 indictable offense, and should have received a conditional discharge in connection with his disorderly persons marijuana possession charge in 1982. Further, he points out that after his 1987 plea but before sentencing the amount of marijuana required for a fourth-degree offense was raised to fifty grams. As a result, he contends that he should not have been sentenced for the indictable crime at all. In all these respects, he claims his matters were handled poorly by his counsel, entitling him to leniency now. He argues that the expungement court should have considered this prior treatment and asks us to remand for that purpose.

Desiato makes an impassioned plea but, even if inclined to do so, we are powerless to afford him relief. We simply do not have carte blanche to effectively re-write a law that is crafted so clearly. While we may interpret ambiguous statutes, there is no ambiguity in this case. Defendant may well be a law abiding and productive citizen at this time, but his convictions are not subject to expungement. We affirm substantially for the reasons succinctly expressed by Judge Harper in his Findings of Fact and Conclusions of Law annexed to the January 2, 2007 order.

Affirmed.

20071105

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