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In re Expungement Application of Mueller

March 18, 2009

IN THE MATTER OF THE EXPUNGEMENT APPLICATION OF WILLIAM MUELLER.


On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. Ex-33-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 3, 2009

Before Judges Gilroy and Chambers.

Appellant William Mueller appeals from that part of the June 6, 2008 order denying his petition for expungement of a criminal conviction of second-degree sexual assault, N.J.S.A. 2C:14-2c(1). We affirm.

The facts are not in dispute. On February 29, 1980, appellant was charged by a Burlington County Grand Jury with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(5) (Count One), and with third-degree terroristic threats, N.J.S.A. 2C:12-3a (Count Two). On July 2, 1980, pursuant to a plea agreement, appellant pled guilty to the amended charge of second-degree sexual assault on Count One in exchange for the State's recommendation to dismiss Count Two. On October 10, 1980, defendant was sentenced on the sexual assault conviction to a term of three years of probation conditioned on him serving six months in the Burlington County Jail. Pursuant to the plea agreement, the court dismissed Count Two.

On January 30, 2008, appellant filed a petition for expungement of the sexual assault conviction, having not only satisfactorily served his term of incarceration, but also completed his term of probation, pursuant to N.J.S.A. 2C:52-1 to -32 (the expungement chapter).*fn1 The State objected to appellant's petition regarding the sexual assault conviction, contending that under N.J.S.A. 2C:52-2b "any conviction for a crime committed pursuant to N.J.S.A. 2C:14-2 is not eligible for expungement," citing In re Expungement of W.S., 367 N.J. Super. 307 (App. Div. 2004).

Following oral argument on appellant's petition on April 25, 2008, the trial court rendered an oral decision denying the application for expungement of the sexual assault conviction. In denying the application for expungement of the sexual assault conviction, the trial court relied on this court's decision in W.S., where we concluded that the parenthetical reference to "aggravated sexual assault" following the citation of N.J.S.A. 2C:14-2 in N.J.S.A. 2C:52-2b "is descriptive only, in that [the latter statute] prohibits expungement of any conviction under N.J.S.A. 2C:14-2." Id. at 309. A confirming order was entered on June 8, 2008.*fn2

On appeal, appellant argues:

POINT I.

PARENTHETICAL MATERIAL IN THE STATUTE IS NOT TO BE DISREGARDED. RATHER, IF TREATED AS "DESCRIPTIVE ONLY," THE STATUTE WOULD BE INTERNALLY FLAWED WHERE IT ELSEWHERE CLEARLY DEPENDS UPON PARENTHETICAL MATERIAL TO OPERATE/INTERP[R]ET.

A. IF THE PARENTHETICAL MATERIAL WAS ONLY A GENERAL DESCRIPTION OF THE OFFENSE UNDER N.J.S.A. 2C:14-2, SEXUAL ASSAULT, THE LEGISLATURE WOULD NOT HAVE SPECIFICALLY INSERTED THE WORD "AGGRAVATED" INTO THEIR DESCRIPTION OF OFFENSES BARRED FROM EXPUNGEMENT.

POINT II.

AGGRAVATED SEXUAL ASSAULT AND SEXUAL ASSAULT ARE DISSIMILAR OFFENSES WHICH CLEARLY WARRANT AND RECEIVE DIFFERENT TREATMENT UNDER NEW ...


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