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In re Expungement of Mullusky

July 14, 2009

IN THE MATTER OF THE EXPUNGEMENT OF KEITH J. MULLUSKY


On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. 58780.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: June 9, 2009

Before Judges Axelrad and Winkelstein.

The State appeals from the trial court's order granting petitioner's motion for expungement of his disorderly persons and petty disorderly persons convictions and denying reconsideration.*fn1 We reverse.

As petitioner's criminal history revealed, he sustained a total of five disorderly/petty disorderly persons convictions stemming from offenses occurring on four separate dates, as follows:

Offense*fn2 Offense Date Conviction Date Harassment 8/22/88 11/14/88-Lindenwold Harassment 9/20/88 11/14/88-Lindenwold Harassment 10/13/88 10/25/88-Lindenwold Attempting to Elude a Police Officer

8/6/94 6/18/97-Voorhees Resisting Arrest

8/6/94 6/18/97-Voorhees

Petitioner also has multiple other arrests that did not result in convictions and a borough ordinance violation that he concedes is not subject to expungement. See N.J.S.A. 2C:52-4 (precluding expungement of a borough ordinance conviction by a person who has been adjudged a disorderly person or petty disorderly person on more than two occasions).

Petitioner filed a petition for expungement of the above convictions pursuant to N.J.S.A. 2C:52-3. Petitioner took the position that he should only be considered as having been convicted of three disorderly persons offenses, not five. He urged the court to consider the two convictions entered on June l8, 1997 in Voorhees for attempting to elude a police officer and resisting arrest as a single conviction for expungement purposes because although the offenses were not merged, both offenses occurred at the same time and involved the same officer, were listed on the same summons, and were disposed of on the same date. Likewise, petitioner urged the court to consider the two convictions for harassment entered on November l4, 1988 in Lindenwold as a single conviction for expungement purposes, emphasizing that they occurred within a month of each other and were disposed of on the same date even though the offenses emanated from separate incident dates and were not merged.

In support of his position in both instances, petitioner relied upon In re Patrick Fontana, 146 N.J. Super. 264, 266-67 (App. Div. l976), in which we held that numerous crimes committed by the defendant over a one-week period contained in six indictments but pled to on the same day constituted "a conviction" for purposes of the expungement statute then in effect.*fn3 We permitted the expungement of the multiple offenses under the circumstances of the case because we viewed the criminal conduct at issue "as akin to a 'one night spree' which has generally received special consideration in sentencing[.]" Id. at 267 (internal citation omitted).

Petitioner additionally argued that even if the court did not consider the two separate Lindenwold harassment charges disposed of on the same date to be one offense and concluded petitioner had four disorderly persons convictions, he would still be entitled to expungement relief. According to petitioner, the phrase in the statute that "[a]ny person convicted of a disorderly persons offense or a petty disorderly persons offense under the laws of this State who has not been convicted of . . . another three disorderly persons or petty disorderly persons offenses" may apply for expungement,*fn4 permits expungement if there are not more than four disorderly persons convictions.

In contrast, the State argued the plain language of the statute and the case law support the interpretation that expungement relief extends only to a person who has committed up to three disorderly persons or petty disorderly persons offenses for which he has been convicted. See State v. A.N.J., 98 N.J. 421, 427 (1985); State v. Ochoa, 314 N.J. Super. 168, 172 (App. Div. 1998). It further contended the facts were inapposite to Fontana, as there was no relationship between the August 1988 and September 1988 harassment charges in Lindenwold other than that petitioner pled guilty to both of them on the same date. Moreover, the State argued that we flatly rejected petitioner's "single conviction date" theory in In re Ross, 400 N.J. Super. 117 (App. Div. 2008), decided shortly before petitioner's expungement application. Thus, even accepting that the ...


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