October 28, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FRANCIS A. PILUSO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. I-632-81.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 7, 2009
Before Judges Axelrad and Sapp-Peterson.
In August 1982, a Cape May County grand jury indicted defendant, along with four others, on a charge of aggravated sexual assault, N.J.S.A. 2C:14-2(a). On November 4, 1982, defendant pled guilty to an amended charge of attempted criminal sexual contact where the victim is a minor and the offender is not a parent, N.J.S.A. 2C:14-3(b) and 2C:5-1, (hereinafter referred to as "attempted criminal sexual contact"), and on that same date was sentenced to a one-year period of probation, along with appropriate fines and penalties. On September 17, 2008, defendant filed a petition seeking to expunge the original aggravated sexual assault charge and the amended attempted criminal sexual contact charge to which he subsequently pled guilty. The trial court denied the petition, finding that the expungement statute, N.J.S.A. 2C:52-1 to -32 (Act), is not unconstitutional and that defendant had no vested right to an expungement. We affirm.
On appeal, defendant raises the following points for our consideration:
THE NEW JERSEY EXPUNGEMENT STATUTE, N.J.S.A. 2C:52-1 [to -32,] AS APPLIED TO FRANCIS A. PILUSO'S CASE IS RETROSPECTIVE, DISADVANTAGES MR. PILUSO, AND PERMITS ADDITIONAL PUNITIVE SANCTIONS, WHICH VIOLATE THE CONSTITUTIONAL PROHIBITION AGAINST EX POST FACTO LEGISLATION.
THE RETROACTIVE APPLICATION OF THE NEW JERSEY EXPUNGEMENT STATUTE VIOLATES FRANCIS
A. PILUSO'S DUE PROCESS AS THE RESULT WOULD BE "HARSH AND OPPRESSIVE"
Prior to 1994, a person convicted of attempted criminal sexual contact was eligible to file a petition for expungement upon the completion of the sentence. On October 31, 1994, the Legislature amended the Act to include criminal sexual contact*fn1 as among those offenses for which an expungement petition may not be filed. The amendment took effect immediately and, pursuant to N.J.S.A. 2C:52-25, applied to "arrests and convictions which occurred prior to, and which occur subsequent to, the effective date of [the amendment]."*fn2
Defendant urges that because he was eligible for expungement in 1993, at a time when attempted criminal sexual contact was not a disqualifying offense for expungement purposes, application of the 1994 amendment to preclude his 2008 expungement petition violates the ex post facto clauses of the United States and New Jersey Constitutions. U.S. Const. art. I, § 9, cl. 3; U.S. Const. art. I, § 10, cl. 1; N.J. Const. art. IV, § 7, ¶ 3. In addition, defendant argues that he satisfied his debt to society, has been rehabilitated, and should not be disadvantaged and stigmatized with the label of ex-convict.
Finally, he urges that the effect of the Act's application to him is to prohibit him from becoming a foster parent, a result that is harsh and oppressive. We reject these arguments.
While defendant has paid his debt to society for the offense for which he has been convicted and while his desire to become a foster parent is admirable, the Act's language rendering certain offenses not subject to expungement is clear and unambiguous and does not violate ex post facto laws. A violation of ex post facto laws, under both the Federal and State Constitutions, occurs when legislation either: (1) punishes as a crime an act that was innocent when done; (2) makes the punishment of a crime more burdensome after its commission; or (3) deprives a defendant of a defense that was available when the crime was committed. State v. Muhammad, 145 N.J. 23, 56 (1996) (citing Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 68-69, 70 L.Ed. 216, 217 (1925)). The Act is remedial rather than punitive and does not prolong a defendant's sentence. State v. T.P.M., 189 N.J. Super. 360, 367-68 (App. Div. 1983).
The 1994 amendment does not fall into any of the categories triggering ex post facto laws. Apart from the fact that the Act is remedial rather than punitive, the 1994 amendment did not increase the punishment for criminal sexual contact, and since defendant had already been convicted, he was not deprived of a defense. State v. Muhammad, supra, 145 N.J. at 56. The Legislature had the right to expand the types of offenses for which the remedy of expungement is not available and to accord retroactive effect to the amendment without offending ex post facto clauses of both the Federal and State Constitutions. State v. T.P.M., supra, 189 N.J. Super. at 364.
Although the effect of defendant's conviction may yield a collateral consequence that seems harsh, the 1994 amendment did not take away a benefit that defendant had previously secured. Id. at 368. Rather, it denied defendant the opportunity to file a petition for a benefit he could have sought fifteen years earlier. As we previously noted in T.P.M., "[t]he existence of a criminal record is simply a fact of life, not part of the sentence and punishment. Defendant [has] no constitutionally protected right to assume that the legislative remedy of expungement [is] immutable." Ibid.