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In re Desiato

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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