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In re Application of Johnson

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 17, 2010

IN THE MATTER OF THE APPLICATION OF SEYMOUR O. JOHNSON FOR EXPUNGEMENT

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, M-405-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 25, 2010

Before Judges Lisa and Alvarez.

In this appeal, Seymour O. Johnson seeks to have us depart from the holding in In re Expungement of W.S., 367 N.J. Super. 307 (App. Div. 2004), thereby making it possible for his June 12, 1992 conviction for sexual assault, N.J.S.A. 2C:14-2c(4), to be expunged. We decline to do so and affirm.

On October 31, 2008, petitioner filed an application for expungement. The prosecutor's office withdrew its initial objection, and an order was signed on December 23, 2008. On February 9, 2009, the county prosecutor filed a notice of motion to vacate the expungement order, having learned that W.S. prohibited the relief petitioner had obtained. This record is very scant, and it is unclear if the motion was decided on the papers or if oral argument was conducted; in any event, the prosecutor's motion was granted April 17, 2009, the expungement order was vacated, and on June 1, 2009, a notice of appeal was filed. Judge Ciuffani subsequently amplified his reasons for vacating the expungement order. See R. 2:5-1(b). His analysis in principal part relied upon W.S.

W.S. clarifies the confusion inherent in the expungement statutory scheme. Petitioner is undoubtedly "the one-time offender who has led a life of rectitude and disassociated himself with unlawful activity," for whom expungement is intended. N.J.S.A. 2C:52-32. If we could stop our analysis there, he would be entitled to the relief he seeks.

N.J.S.A. 2C:52-2b, however, enumerates convictions which cannot be expunged, regardless of how exemplary a petitioner's subsequent conduct. N.J.S.A. 2C:52-2b references N.J.S.A. 2C:14-2; immediately following the statutory cite are the words "aggravated sexual assault" in parentheses. As we explained in W.S., this parenthetical "is simply an incomplete and thus inaccurate description of this offense that does not limit the scope of the prohibition against expungement." W.S., supra, 367 N.J. Super. at 312-13 (citing State v. K.M., 220 N.J. Super. 338, 339 (App. Div. 1987)).

The prohibited offenses include crimes less grave than sexual assault, such as aggravated criminal sexual contact, N.J.S.A. 2C:14-3a. W.S., supra, 367 N.J. Super. at 313. Because these enumerated offenses are included in the scope of Megan's Law, by definition they cannot be expunged. See N.J.S.A. 2C:7-2b(1); W.S., supra, 367 N.J. Super. at 313. It would be "irrational" to attribute to the Legislature the intent to include them within the scope of Megan's Law, while permitting them to be expunged. Ibid. Petitioner offers no fact or law that casts doubt on the principles enunciated in W.S. Accordingly, we affirm.

Affirmed.

20100317

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