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In re Expungement of the Criminal Record of J.G.B.

March 23, 2010

IN THE MATTER OF THE EXPUNGEMENT OF THE CRIMINAL RECORD OF J.G.B.


On appeal from Superior Court of New Jersey, Law Division, Ocean County.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 9, 2010

Before Judges Grall and LeWinn.

J.G.B. appeals from the denial of a verified petition for expungement. After review of the record in light of the arguments presented, we affirm.

The pertinent facts are as follows. J.G.B. sought to expunge a conviction for third-degree theft by deception, N.J.S.A. 2C:20-4. The judgment was entered in October 1997. In addition, J.G.B. had a prior conviction for a Class A misdemeanor in New York, criminal possession of a controlled substance, N.Y. Penal Law § 220.03. The term controlled substance is defined to exclude "marihuana" but include "concentrated cannabis." N.Y. Penal Law § 220.00(5). The sentence for a Class A misdemeanor is a term "fixed by the court [that] shall not exceed one year." N.Y. Penal Law § 70.15(1); cf. N.Y. Penal Law § 70.15(2) (providing a sentence not to exceed three months for a Class B misdemeanor).

"[A] petition for expungement filed pursuant to chapter 52 of the Code shall be denied when '[a]ny statutory prerequisite including any provision of this chapter, is not fulfilled or there is any other statutory basis for denying relief.'" State v. H.G.G., 202 N.J. Super. 267, 272-73 (App. Div. 1985) (quoting N.J.S.A. 2C:52-14(a)). One of the statutory prerequisites is that the person be one who "has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction . . . ." N.J.S.A. 2C:52-2(a); see H.G.G., supra, 202 N.J. Super. at 273.

The State opposed J.G.B.'s application on the ground that his conviction for a Class A misdemeanor in New York barred expungement of his conviction for a third-degree crime in New Jersey. J.G.B. contended that a Class A misdemeanor in New York cannot be deemed a "crime" within the meaning of N.J.S.A. 2C:52-2(a). In the alternative, he argued that the offense he committed in New York is analogous to disorderly persons offenses defined in N.J.S.A. 2C:35-10(a)(4), possession of less than fifty grams of marijuana or five grams or less of hashish, and N.J.S.A. 2C:35-10(c), knowingly obtaining a controlled dangerous substance and failing to deliver the contraband to the nearest law enforcement officer.

The trial judge, relying on statutes that define the term "crime" to include offenses for which the maximum penalty authorized exceeds six months, N.J.S.A. 2C:1-4(a); N.J.S.A. 2C:44-4(c), concluded that J.G.B. was not entitled to relief. As we understand the judge's decision, he rejected J.G.B.'s attempt to equate his New York conviction with the disorderly persons set forth in N.J.S.A. 2C:35-10, on the ground that the elements are not comparable.

On appeal defendant argues:

I. THE COURT BELOW INCORRECTLY CONSTRUED N.J.S.A. 2C:1-4 AS STANDING FOR THE PROPOSITION THAT A "CLASS A MISDEMEANOR" IN THE STATE OF NEW YORK IS DESIGNATED AS A CRIME IN THE STATE OF NEW JERSEY.

II. THE LAW DIVISION'S RELIANCE ON N.J.S.A. 2C:44-4(c) TO DENY THE PETITION FOR EXPUNGEMENT IS MISPLACED AS THAT PORTION OF THE CRIMINAL CODE CONCERNS ITSELF ONLY WITH SENTENCING OF NEW JERSEY CONVICTIONS.

III. THE COURT BELOW ERRED IN FINDING THAT THE OFFENSE TO [SIC] WHICH THE PETITIONER WAS CONVICTED IN NEW YORK WAS NOT ANALOGOUS TO N.J.S.A. 2C:35-10(c).

IV. THE LAW DIVISION'S RELIANCE ON N.J.S.A. 2C:44-4(c) TO DENY THE PETITION FOR EXPUNGEMENT IS MISPLACED AS THAT PORTION OF THE CRIMINAL CODE CONCERNS ITSELF ONLY ...


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