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In re Expungement Petition of D.H.

December 21, 2009

IN THE MATTER OF THE EXPUNGEMENT PETITION OF D.H.


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. 2008-0709.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 17, 2009

Before Judges Carchman and Parrillo.

Petitioner D.H. pled guilty to a disorderly persons offense of unlawful computer access, N.J.S.A. 2C:20-32, arising from an unlawful criminal background check performed while she was employed by the Monmouth County Prosecutor's Office. Petitioner was sentenced to the minimum fines, and the trial court issued a Forfeiture of Employment Order (forfeiture order).

On July 8, 2009, almost ten years after her October 1999 plea, petitioner filed a petition to expunge her conviction. Judge Neafsey, in the Law Division, granted the relief and entered a Final Order of Expungement. That order not only expunged the conviction but relieved petitioner of the bar against her future public employment. The State appeals, and we affirm.

The facts are not in dispute. On June 2, 1999, petitioner, a detective in the Monmouth County Prosecutor's Office from 1985 to October 1999, conducted a criminal background check on an individual using the Criminal Justice Information System (CJIS)*fn1 for non-law enforcement purposes. Following an internal affairs investigation, on October 5, 1999, petitioner entered an unconditional plea of guilty to the disorderly persons offense of unlawful computer access, N.J.S.A. 2C:20-32. The plea offer required petitioner to forfeit her position as an investigator. Petitioner was sentenced to $30.00 costs, $50.00 violent crime commission penalty, a safe neighborhood fee of $30.000, and the judge signed the forfeiture order on October 6, 1999. That order provided that "pursuant to N.J.S.A. 2C:51-2, the defendant shall forfeit her public employment and shall be forever disqualified from holding any office or position of honor, trust or profit under the State...."

Petitioner subsequently filed a petition for post-conviction relief (PCR), which was denied, and we affirmed on appeal.

As petitioner had no subsequent offenses, on July 8, 2008, petitioner filed a petition to expunge her conviction. The judge granted the expungement but stayed the order pending appeal. This appeal followed.

A petitioner seeking expungement has the burden of establishing compliance with the provisions of N.J.S.A. 2C:52-3.*fn2

See In re G.R., 395 N.J. Super. 428, 431 (App. Div.), certif. denied, 193 N.J. 275 (2007). If the petitioner meets this threshold burden, "the State has the burden of demonstrating by a preponderance of the evidence that there is a statutory bar or that the petition should not be granted." Ibid. The State urges that the petition for expungement should be denied under N.J.S.A. 2C:52-14B, as the forfeiture order under N.J.S.A. 2C:51-2D must be given "full effect."*fn3

N.J.S.A. 2C:51-2(d) mandates forfeiture of employment for a person convicted of an offense involving or touching on his or her public office, position or employment. The forfeiture order is a mandated consequence of a petitioner's guilty plea and is inseparably tied to the underlying conviction. See In re Forfeiture of Public Office of Nunez, 384 N.J. Super. 345, 347 (App. Div.), certif. denied, 187 N.J. 491 (2006). However, "forfeiture of public employment is a 'collateral consequence[]' of a criminal conviction, which is eliminated by an order of expungement." Id. at 349 (citations omitted). "[I]f an order of expungement is granted, the arrest, conviction and any proceedings related thereto shall be deemed not to have occurred[.]" N.J.S.A. 2C:52-27. Although N.J.S.A. 2C:51-2(d) and the forfeiture order at issue both state that petitioner shall be "forever disqualified" from public employment, when a petitioner's underlying conviction is expunged, the petitioner is freed from collateral consequences of that conviction, including a forfeiture order. See Nunez, supra, 384 N.J. Super. at 347; N.J.S.A. 2C:52-27.

The State contends that it has a great interest in preserving petitioner's record in order to protect the public interest. It argues that "most disorderly persons convictions that touch upon the public office held by the offender warrant a permanent forfeiture[,]" and the forfeiture statute "codifies a long-standing policy against retention of ...


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