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In re Celler

December 10, 2008

IN THE MATTER OF HERBERT CELLER


On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 270-70.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 19, 2008

Before Judges Waugh and Newman.

Petitioner Herbert Celler appeals from the order dismissing with prejudice his petition which sought, in part, expungement of his arrest and conviction for armed robbery.

The relevant facts may be summarized as follows. On December 11, 1997, an Ocean County Grand Jury returned Indictment No. 270-70, charging petitioner and a co-defendant with an armed robbery of a Sunoco station, contrary to the provisions of N.J.S.A. 2A:141-1 and N.J.S.A. 2A:151-5 (count one). Tried by a jury, petitioner was found guilty of armed robbery and sentenced to an indeterminate term at the Youth Reception and Correction Center. This sentence was suspended and petitioner was placed on probation for three years.

N.J.S.A. 2C:52-2(b) relates to pre-code offenses and describes those convictions which are not eligible for expungement. N.J.S.A. 2C:52-2(b) reads in relevant part:

Records of conviction pursuant to statutes repealed by this Code for the crimes of murder, manslaughter, treason, anarchy, kidnapping, rape, forcible sodomy, arson, perjury, false swearing, robbery, embracery, or a conspiracy or any attempt to commit any of the foregoing, or aiding, assisting or concealing persons accused of the foregoing crimes, shall not be expunged.

Petitioner contends that, because "robbery" is expressly mentioned as barred from expungement, "armed robbery," even though a more serious crime, is expungeable. We disagree and affirm.

N.J.S.A. 2A:141-1 defined robbery as follows:

Any person who forcibly takes from the person of another, money or personal goods and chattels, of any value whatever, by violence or putting him in fear, is guilty of a high misdemeanor and shall be punished by a fine of not more than $5,000, or by imprisonment for not more than 15 years, or both.

N.J.S.A. 2A:151-5 provided additional sentences for armed criminals. It was a sentencing enhancement statute not limited to robbery but increased the sentences and penalties for various crimes, including robbery, when they are committed while armed with a weapon.

N.J.S.A. 2C:15-1(b) is the successor statute to N.J.S.A. 2A:141-1 and 2A:151-5. Like its source statute, it provides that the possession of a weapon during a robbery raises the degree of the crime, thereby exposing the perpetrator to an enhanced sentence. Convictions for violations of N.J.S.A. 2C:15-1 are precluded from expungement.

In construing the statute, we presume that the Legislature intended a logical and consistent application. The overriding goal is to determine the legislative intent. Hubbard v. Reed, 168 N.J. 387, 392 (2001) (quoting State, Dep't of Law & Pub. Safety v. Gonzalez, 142 N.J. 618, 627 (1995). In In re Petition for the Expungement of W. S., 367 N.J. Super. 307 (App. Div. 2004), this court held that a conviction for sexual assault was ineligible for expungement even though the text of N.J.S.A. 2C:52-2b contained only the phrase "aggravated sexual assault." Id. at 309. The word "assault" was not included as a ...


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