On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. 45-80.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 29, 2008
Before Judges Winkelstein and Gilroy.
Appellant Robert Romano appeals from the December 14, 2007 order denying his petition for expungement of a criminal conviction entered against him twenty-six years prior. For reasons that follow, we affirm.
On June 25, 1980, following a motor vehicle stop, appellant was arrested in possession of 173.5 pounds of marijuana. On October 7, 1980, appellant was charged by a Gloucester County Grand Jury with possession of a controlled dangerous substance (CDS), N.J.S.A. 24:21-20a.4 (Count One), and possession of a CDS with intent to distribute, N.J.S.A. 24:21-19a.1 (Count Two).
On January 9, 1981, appellant pled guilty to Count Two. On July 10, 1981, appellant was sentenced on the conviction to two years of probation conditioned on serving one day incarceration at the Gloucester County Jail. A fine of $5,000 was also imposed. Count One was dismissed, and a confirming of conviction was entered the following day.*fn1 In sentencing appellant, the trial court reasoned in part:
This matter has not been subject to negotiations. The man has pled guilty reserving his right to appeal a denial of a Motion to suppress. This offense took place on June 25, 1980 when this defendant was stopped by the State Police for weaving in traffic. As a result thereof, a consent search was obtained and they found five large bags of vegetation which proved to be positive for 173.5 pounds of marijuana. The first count of this indictment was agreed to be dismissed by the prosecutor at the time of sentence[,] leaving count two which has to be sentenced upon. The defendant apparently was employed to transport to Fort Lauderdale to Montreal or someplace within said States a load of marijuana. He was employed for it. He was to be paid $1,000.00 for the trip, $800.00 American dollars is what he was supposed to be paid. . . . He has been employed as a teacher since December of 1980, and earns $170.00 gross Canadian [m]oney per week.
The only assets he has [are] a 1977 Fiat and a guitar. He does owe quite a bit of money. . . . He claims that he got involved in this because he was trying to live on unemployment compensation and could not cover his expenses. He saw his friends prospering from their involvement with the delivery of marijuana and decided to make some extra money for himself.
On September 14, 2007, appellant filed a petition for expungement, pursuant to N.J.S.A. 2C:52-1 to -32 (the expungement chapter). The State objected, contending that the application was barred by N.J.S.A. 2C:52-2c.*fn2 In denying appellant's petition, Judge Allen-Jackson reasoned:
It involves transporting a very large amount of marijuana, 173.5 pounds, from Canada to Florida which means that it involves bringing into the country from outside of the country an illegal substance and obtaining the [remuneration] for that service.*fn3 Although the [c]court at this point has the ability to be able to consider whether the previous offense was a sale, it is clear that the [appellant's] act was part of the chain that placed that marijuana, or had the potential of placing that marijuana had it not been confiscated, into the stream of commerce for a fee. He received the $1,000 in order to transport that marijuana to Florida.
The amount itself is not for the [c]court's consideration. I do not find that the State has the burden of showing that his particular [appellant] was the one that would be standing [on] the corner and actually selling the marijuana. But his activity of bringing it into the country, that large a quantity, and transporting it to Florida is an act that tends to show that it is for sale given that it's 175 pounds.
I do not find that this is the same as someone that is sharing, that gives a gift. I don't think that 175 pounds of marijuana was going to be just distributed at its ultimate destination as a holiday gift. I do find that this is not an exception that would allow the court to expunge this particular petition. It does not fall under the appropriate guidelines. The State has objected to it. I do find that that ...