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In re Expungement of the Criminal Record of Russo


July 31, 2009


On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. S-90-1318-001.

Per curiam.


Submitted May 4, 2009

Before Judges Sapp-Peterson and Alvarez.

Petitioner Robert Russo appeals the June 9, 2008 dismissal of his petition for expungement filed in the Law Division pursuant to N.J.S.A. 2C:52-1 to -32. We affirm.

On August 7, 1986, petitioner entered a guilty plea and was sentenced in New York on a charge of disorderly conduct, N.Y. Penal Law § 240.20. That offense is classified as a "violation," which is "an offense, other than a 'traffic infraction,' for which a sentence to a term of imprisonment in excess of fifteen days cannot be imposed." N.Y. Penal Law § 10.00.

On June 21, 1989, petitioner entered a guilty plea in the Clifton Municipal Court to a charge of possession of less than fifty grams of marijuana, N.J.S.A. 2C:35-10(a)(4), a disorderly persons offense. Thereafter, on August 28, 1989, petitioner entered a guilty plea in the Wallington Municipal Court to an unrelated charge of possession of less than fifty grams of marijuana.

Subsequent to a mistrial occasioned by a hung jury, on a Bergen County indictment charging him with second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count one), and third-degree tampering with a witness, N.J.S.A. 2C:28-5(a) (count two), petitioner entered a guilty plea to count two. He was sentenced on April 5, 1991, to probation and resentenced on May 18, 1992, on a violation of probation.

In January 2007, petitioner filed a petition for expungement. The Bergen County Prosecutor's Office objected on the basis that petitioner's request violated N.J.S.A. 2C:52-2(a), which prohibits the expungement of the criminal record of an individual convicted of an indictable offense plus more than two disorderly persons or petty disorderly persons charges. Petitioner appeals pro se the dismissal of his petition, contending that New York's definition of "violation" is not the equivalent of a New Jersey petty disorderly persons or disorderly persons offense, and that, therefore, the New York conviction should not be counted.

Expungement is a purely statutory remedy. It is intended to provide relief to "the one-time offender," not to "periodic violators of the law." N.J.S.A. 2C:52-32. For that reason, repetitive offenders are barred from relief under most circumstances.

N.J.S.A. 2C:52-2(a) states:

In all cases . . . wherein a person has been convicted of a crime . . . and has not been adjudged a disorderly person or petty disorderly person on more than two occasions [he] may, after the expiration of a period of ten years from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later, present a duly verified petition [for expungement].

Although subsequent convictions for no more than two disorderly or petty disorderly offenses shall not be an absolute bar to relief, the nature of those conviction or convictions and the circumstances surrounding them shall be considered by the court and may be a basis for denial of relief if they or either of them constitute a continuation of the type of unlawful activity embodied in the criminal conviction for which expungement is sought.

The statute authorizes expungement where a petitioner has been convicted of a crime plus no more than two disorderly persons or petty disorderly persons offenses. Even one or two disorderly persons or petty disorderly persons offenses may constitute a bar to relief, as authorized by statute in some limited circumstances. The "general principle" of the statute is to "favor[] expungement of the criminal records of a first-time offender." In re Expungement Application of P.A.F., 176 N.J. 218, 223 (2003).

The expungement statute even addresses expungement of municipal ordinance violations. Where, after the expiration of two years, a petitioner seeks to expunge a municipal ordinance violation, he or she must not have been "convicted of any prior or subsequent crime, whether within this State or any other jurisdiction," nor "adjudged a disorderly person or petty disorderly person on more than two occasions." N.J.S.A. 2C:52-4. Penalties for violations of municipal ordinances include imprisonment in the county jail for a term of up to ninety days. N.J.S.A. 40:49-5.

Out-of-state convictions that would be disorderly persons or petty disorderly persons offenses if committed in New Jersey must be included in the calculus for statutory expungement eligibility. State v. Ochoa, 314 N.J. Super. 168 (App. Div. 1998). With these principles in mind, we turn to petitioner's claim that the Law Division judge erred by including the New York disorderly conduct conviction in the determination of his eligibility for expungement.

In New Jersey, a petty disorderly persons offense carries a maximum sentence of thirty days in jail. N.J.S.A. 2C:43-8. It bears repeating that disorderly conduct is defined in New York as a "violation," an offense punishable by no more than fifteen days of incarceration. N.Y. Penal Law, § 240.20; N.Y. Penal Law § 10.00. The next category of offenses, those greater than "violations," are "misdemeanors," offenses, other than "traffic infractions," for which a sentence of up to one year can be imposed. Ibid.

In Ochoa, supra, 314 N.J. Super. at 170, the petitioner sought to expunge disorderly persons and petty disorderly persons convictions pursuant to N.J.S.A. 2C:52-3. She had been convicted out-of-state of several offenses that were the equivalent of our disorderly and petty disorderly offenses, including three convictions in New York City of loitering for the purpose of engaging in prostitution. Ibid. We reasoned that the Legislature's intent to exclude "periodic violators of the law" from the benefit of expungement required that the prior offense history include out-of-state matters. Id. at 172-73.

To do otherwise would defeat the legislative purpose and lead to an "anomalous result." Id. at 172.

New York's definition of "violation" creates a category not included in our system - more than a traffic offense, but less than our petty disorderly persons offense. The next category of offenses in New York's scheme, however, is the equivalent of the category of indictable crimes in New Jersey.

The stated legislative intent and the Ochoa analysis lead us inescapably to the conclusion that petitioner was correctly considered a "periodic violator" and thereby denied relief. To do otherwise would lead to the "anomalous result" that persons convicted in New York of anything less than "misdemeanors" would not have those offenses counted in the determination of statutory eligibility for expungement. The net effect would be to exclude offenses less than our jurisdiction's indictable crimes, thereby eliminating a host of offenses, including the very ones counted in Ochoa.

Therefore, petitioner, who asserts that he has led a blameless life since 1992, must nonetheless be denied the expungement that he seeks. His New York "violation" must be weighed as a petty disorderly persons offenses for purposes of eligibility.



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