On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 91-09-2490-D.
The opinion of the court was delivered by: Baxter, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges S.L. Reisner, Gilroy and Baxter.
Robert Ross (petitioner) appeals from an October 2, 2007 order of the Law Division that denied his petition for expungement of his conviction for third-degree bribery, N.J.S.A. 2C:27-6. In denying expungement, the judge relied on a portion of N.J.S.A. 2C:52-2 that permits expungement of an indictable conviction only if the petitioner "has not been convicted of a prior or subsequent crime." The judge concluded that because Ross committed the crime of false swearing months after he committed the bribery, the false swearing conviction constituted a conviction of a "subsequent crime" that precluded expungement of the bribery conviction, even though Ross was sentenced and convicted for the two crimes on a single sentencing date. We affirm.
In 1989 and 1990, Ross, his father and his sister owned a number of rental properties in Atlantic City. In one of those buildings, Ross and his family installed a water heater with a defective flue that violated the applicable building code. Ross bribed an Atlantic City Housing Authority inspector on several occasions between April 20, 1989, and February 28, 1990, to ignore the violation. As a result of the defective flue, carbon monoxide accumulated and a family of five living in the building was asphyxiated.
The Atlantic County Prosecutor's Office began an investigation into the deaths and interviewed Ross. On May 22, 1990, Ross falsely stated under oath that he and his business partners had not installed a new hot water heater in the apartment where the five deaths occurred.
An Atlantic County grand jury returned six separate indictments against Ross, his father and sister. On July 13, 1992, Ross entered negotiated guilty pleas to one count of fourth-degree false swearing, N.J.S.A. 2C:28-2, and one count of third-degree bribery, N.J.S.A. 2C:27-6.*fn1 He was sentenced on both charges on the same sentencing date, July 24, 1992, at which time the court imposed a three-year term of probation. As far as we can determine from the record, Ross successfully completed that probationary term. Pursuant to the terms of the July 13, 1992 plea agreement, all remaining counts on the six indictments were dismissed.
Ross, now thirty-eight years old, has not been arrested or convicted of any offense or crimes since he was convicted of the instant offenses in 1992. He now resides in North Carolina and seeks to obtain either a real estate or automobile dealership license but is unable to do so unless his bribery conviction is expunged.
On July 5, 2007, Ross filed a petition for expungement in which he sought to expunge only the bribery conviction. He did not seek to expunge the false swearing conviction because the applicable statute, N.J.S.A. 2C:52-2(b), prohibits expungement of a conviction for false swearing. Judge Isman denied the expungement petition, concluding that the applicable statute, N.J.S.A. 2C:52-2(a), prohibits expungement of a conviction whenever a person has been convicted of a crime committed on a subsequent date even if the petitioner was convicted of both crimes on a single sentencing date. A confirming order was entered on October 2, 2007.
On appeal, Ross argues that the denial of his expungement petition was error because "a simultaneous conviction is not a prior or subsequent conviction for purposes of expungement." The State argues that petitioner's crime of bribery occurred between April 20, 1989, and February 28, 1990, whereas the crime of false swearing occurred months later on May 22, 1990. Consequently, the State contends:
The fact that [Ross] committed crimes on two separate occasions, for which he was convicted, barred the expungement of either the prior or subsequent crime. N.J.S.A. 2C:52-2. The fact that the Legislature used the language "prior or subsequent crime" and did not use the term "prior" or "subsequent conviction" indicates a legislative intent to focus on the date of the ...