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In re Application for Expungement of the Criminal Records of Banka

October 19, 2009


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 88-06-01064-I.

Per curiam.


Argued September 30, 2009

Before Judges Carchman and Parrillo.

Petitioner Steven Banka appeals from an order of the Law Division denying his petition for expungement of a 1988 judgment of conviction for possession with intent to distribute a controlled dangerous substance (marijuana), N.J.S.A. 2C:35-5b(11). In denying the application, Judge Neafsey found that defendant possessed the marijuana with intent to sell rather than dispense or distribute without sale. That finding precludes expungement. We affirm.

These are the relevant facts adduced from the record. On May 4, 1988, following a traffic stop by the Manalapan Township Police Department, which revealed the lack of proper registration for the vehicle petitioner was driving, petitioner was arrested and searched. While searching his person, the officers found that petitioner was carrying a small bag of marijuana, and while searching the car, the officers found a scale. After transport to the police station, petitioner was again searched, and a small bag of marijuana was found hidden in his underwear. Petitioner waived his Miranda*fn1 rights and consented to a search of his bedroom at his residence. There, the police found an additional ten plastic bags of marijuana. Nine bags were located in petitioner's guitar case, while another bag was found in his bedroom closet. Subsequent lab reports confirmed that petitioner was in possession of a total of 121.95 grams of marijuana.

On June 7, 1988, petitioner was indicted by a Monmouth County Grand Jury, Indictment No. 88-06-01064, charging him with two counts of third-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5b(11), and fourth-degree possession of a CDS, N.J.S.A. 2C:35-10a(3). Ultimately, he pled guilty to the second count, third-degree possession of a CDS with intent to distribute. The remaining charges were dismissed. On September 22, 1988, petitioner was sentenced to three years probation, a six month driver's license revocation and fines.

In the twenty years following his conviction, petitioner led a crime-free life. He refrained from illegal drug use, remained steadily employed, completed his Associate's Degree, married and fathered a child to whom he provides financial support.

In his petition to expunge his conviction, petitioner claimed that he "never had any intent to sell the CDS in his possession nor has he ever engaged in the sale of CDS." He averred that "[a]ll of the marijuana I had was for the personal use of myself and a friend." He explained that he and his friend had "just gone in on a quantity of marijuana for our personal use and he lent me his scale to split it up between us once I picked it up." According to petitioner, the marijuana in the car and the scale were the property of his friend, while the marijuana at his home was for his personal use.

In an attempt to clarify why he possessed twelve separate packages of marijuana secreted in different locations, petitioner claimed that the packaging was "how it was packaged when I bought it or how I had split it up for my use." As to the scale, petitioner was seeking to be precise in his division of the marijuana, as both the petitioner and his friend were entitled to an exact share.

In opposing the expungement, the State focused on: 1) petitioner's admissions as to his sharing arrangement with his friend; 2) petitioner's possession of a scale; and 3) the existence of multiple packages of marijuana found in separate locations. After asserting that petitioner's arrangement with his friend constituted a sale, the State urged that the scale and the separately packaged marijuana hidden in different locations in the petitioner's bedroom were indicative of sales activity and not of mere personal use.

Following the hearing, Judge Neafsey, relying on our decision in In re G.R., 395 N.J. Super. 428, 433--34 (App. Div.), certif. denied, 193 N.J. 275 (2007), first observed that the burden is on the petitioner to first demonstrate his eligibility for expungement. Judge Neafsey concluded that petitioner did not meet that initial burden and was barred from seeking expungement since "the facts indicate the marijuana was possessed with the intention to sell." He found that the use of a scale for precise measurement, multiple separate packages of marijuana and different locations for the marijuana all indicated an intent to sell rather then an "intent to make a gratuitous distribution of marijuana to friends." He later added, in a supplemental opinion, that "[t]he bags of marijuana in the guitar case... could easily and discretely be transported to other locations simply by moving the guitar case," another factor which tended to show an intent to sell. He denied the petition. This appeal followed.

On appeal, petitioner argues that the judge failed to apply a "particular standard of proof" and his decision was based on "the Judge's own personal experience and interpretation of the evidence;" that the evidence presented was not sufficient to establish an intent to sell marijuana; and "to deny petitioner's expungement is repugnant to the expungement statute's purpose as defined in N.J.S.A. 2C:52-32 and interpreted in case law."

N.J.S.A 2C:52-2c*fn2 bars convictions "for the sale or distribution of a [CDS] or possession thereof with intent to sell" from expungement except in limited circumstances, inapplicable here. Where there is a conviction for possession with intent to distribute, the focus of inquiry ...

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