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In re Expungement of the Criminal Record of Russo

July 31, 2009

IN THE MATTER OF THE EXPUNGEMENT OF THE CRIMINAL RECORD OF ROBERT RUSSO


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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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