Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Expungement Petition of D.H.

October 27, 2010

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


On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The principal point of contention in this appeal is whether New Jersey's expungement statute, N.J.S.A. 2C:52-1 to 32, and the forfeiture of public employment statute, N.J.S.A. 2C:51-2, can be harmonized so that an order of expungement need not automatically result in voiding an otherwise properly entered order of forfeiture of public employment.

Petitioner D.H. was employed as a detective in the Monmouth County Prosecutor's Office from March 1985 through October 1999. During June 1999, D.H. received a telephone call from an executive at a local employer who asked that D.H. conduct a criminal background check on a prospective employee; D.H. did so, using the Criminal Justice Information System (CJIS), a law enforcement computer system containing, among other things, criminal history records. D.H. well knew she was to make inquiries in CJIS only as part of an active investigation. Although she initially asserted she had her supervisor's permission to do so, she later conceded she had not confirmed that authority in this instance. In the end, D.H. returned the call to the local employer, advising that the person who was the subject of the inquiry indeed had an arrest record.

On September 28, 1999, D.H. was charged with a summons alleging that she had committed the disorderly persons offense of the purposeful and unauthorized access of a computer, in violation of N.J.S.A. 2C:20-32. Pursuant to a plea agreement, on October 5, 1999, D.H. pled guilty to that charge and consented to the entry of an order of forfeiture of public employment. The order of forfeiture provided that "pursuant to N.J.S.A. 2C:51-2, [D.H.] shall forfeit her public employment and shall be forever disqualified from holding any office or position of honor, trust or profit under the State or any of its administrative or political subdivision[s]." The trial court accounted for the effect of the required order of forfeiture in imposing sentence and pointedly did not sentence D.H. to any term of incarceration, any term of probation or the imposition of any fines.

D.H. did not appeal her conviction, sentence or the order of forfeiture of public employment. Instead, on April 12, 2002, she filed a timely petition for post-conviction relief seeking to vacate her guilty plea. D.H.'s application for relief was denied. D.H. appealed and the Appellate Division affirmed. On July 8, 2008 -- almost nine years after her conviction -- D.H. filed a petition to expunge her conviction. After first determining that D.H. had made out a prima facie case entitling her to the expungement of her conviction and after concluding that the reasons advanced by the State in opposition were insufficient to bar the relief requested, the trial court addressed the effect of the order of forfeiture of public employment. Relying on In re Forfeiture of Public Office of Nuñez, 384 N.J. Super. 345 (App. Div.), certif.. denied, 187 N.J. 491 (2006), the trial court concluded that "[f]orfeiture and disqualification of public office are collateral consequences of a conviction" that are "eliminated by the or der of expungement[.]" The trial court thus entered an order expunging D.H.'s conviction and, reasoning that the forfeiture of public employment was a collateral consequence of that conviction, similarly voiding the forfeiture order. The State appealed and, in an unpublished opinion, the Appellate Division affirmed. As did the trial court, the appellate panel quoted In re Nuñez, explaining that "'forfeiture of public employment is a collateral consequence of a criminal conviction, which is eliminated by an order of expungement.'" (citations, internal quotation marks and editing marks omitted). It further concluded that "[a]lthough 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."

The Supreme Court granted the State's Petition for Certification.

HELD: In the context of an expungement application and in order to give full expression to the Legislature's will, a mandatory order of permanent forfeiture of public employment must be severed from -- and preserved from the expungement of -- the conviction that originally triggered the order of forfeiture.

1. New Jersey's expungement statute expresses a clear, "primary objective of providing relief to the one-time offender who has led a life of rectitude and disassociated himself with unlawful activity[.]" N.J.S.A. 2C:52-32. Also, "a central purpose of the expungement statute was to broaden the reliable base of information that will be maintained for law enforcement [,]" thus 'requir[ing] merely the extraction and isolation, not the destruction, of expunged records." State v. XYZ Corp., 119 N.J. 416, 421 (1990). A petitioner must satisfy the requirements of the expungement statute by a preponderance of the evidence. If a petitioner satisfies that burden, the burden then shifts to the State to demonstrate, b y a preponderance of the evidence, why the petition should not be granted. A judicial determination that expungement should be granted, however, does not end the inquiry. (Pp. 13-17)

2. There is no serious contest either in respect of the sufficiency of D.H.'s petition for expungement or whether she satisfied her prima facie burden: D.H. had been convicted of a disorderly persons offense nine years before she sought expungement; D.H. had led a blameless life both before and since then; and her petition for expungement satisfied all of the statutory requirements. In those circumstances, the burden then shifted to the State to demonstrate, by a preponderance of the evidence, a basis cognizable under the expungement statute to deny that relief. The State asserted that, because D.H. also was subject to an order of forfeiture of public employment as part of her disorderly persons conviction, the expungement petition should be denied. Referencing N.J.S.A. 2C:52-14(b), the State asserted that "the need for the availability of these records [of conviction and forfeiture of public office] outweighs the desirability of freeing [D.H.] from the disabilities of her sentence and the collateral conseque nce." In advancing that argument, the State conflates two separate and distinct statutory provisions -- expungement and forfeiture of public employment -- asserting that the continued vitality of the latter trumps the availability of the former. The Court does not agree. The question of whether expungement should be granted is different in both form and substance from the separate but related question as to the reach of any resulting order of expungement. The Legislature foresaw instances where expungement could be granted but, in the exercise of legislatively guided judicial discretion, something less than all of the records resulting from the petitioner's arrest and conviction would be subject to the expungement order. That limitation applies here. D.H.'s petition for expungement of her disorderly persons offense conviction satisfied all of the statutory requirements and the State failed to prove, by a preponderance of the evidence, that expungement should not be granted. In those circumstances, the entry of the order of expungement was proper and, to that extent, is affirmed. (Pp. 17-21)

3. When a committed offense "involves or touches" the offender's public office, position or employment -- that is, if "the offense was related directly to the person's performance in, or circumstances flowing from, the specific public office, position or employment held by the person[,]" N.J.S.A. 2C:51-2(d) -- the result is both mandatory and bleak. That D.H.'s conviction for the disorderly persons offense of the purposeful and unauthorized access of a computer "involved and touched" her employment as a detective with the Monmouth County Prosecutor's Office is not and never has been in dispute. . In re Nuñez In re Nuñez, supra, relied on by both the trial court and Appellate Division in this case, did not involve an offense that "involved and touched" the petitioner's public employment and, hence, was not subject to a statutorily mandated forfeiture of public employment. To the extent that D.H.'s conviction of a disorderly persons offense "involved and touched" her public employment and required the entry of a mandatory order of forfeiture of public employment, the Court rejects In re Nuñez's logic, reasoning and result. When a person is convicted of an offense that "involves and touches" upon that person's public office, the obligatory forfeiture of public employment provisions of N.J.S.A. 2C:51-2(d) are triggered. That, on its face, is a result "otherwise provided by law" that is exempt from the reach of the expungement statute. Under that reasoning and closely following the terms of the expungement statute itself, the entry of an order of expungement should have no effect -- either direct, collateral or preclusive -- on a separate mandatory order of forfeiture of public employment. (Pp. 21-28) The judgment of the Appellate Division is AFFIRMED in part and REVERSED in part, and the matter is REMANDED to the Law Division for the entry of an order expunging D.H.'s conviction but reinstating and retaining unaffected the mandatory order of forfeiture of public employment.

JUSTICE LONG filed a separate opinion, CONCURRING in part and DISSENTING in part, stating that when the forfeiture statute and the expungement statute are read together, the result is clear: forfeiture attaches to the conviction and when the conviction is "deemed not to have occurred," the forfeiture falls of its own weight. CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, and HOENS join in JUSTICE RIVERA-SOTO's opinion. JUSTICE LONG filed a separate opinion, concurring in part and dissenting in part. JUDGE STERN did not participate.

The opinion of the court was delivered by: Justice Rivera-soto

Argued September 14, 2010

A public official pled guilty to a disorderly persons offense that directly involved or touched the official's public office. As part of her plea agreement, the public official consented to the entry of a statutorily mandated order of forfeiture of public employment, that is, an order whereby the public official forfeited her public employment and was "forever disqualified from holding any office or position of honor, trust or profit under this State or any of its administrative or political subdivisions." N.J.S.A. 2C:51-2(d). Several years later, the former public official sought relief under New Jersey's expungement statute, N.J.S.A. 2C:52-1 to -32, seeking an order that "such conviction and all records and information pertaining thereto be expunged." N.J.S.A. 2C:52-3. As part of that application, the former public official also sought to avoid the effect of the mandatory order of forfeiture of public employment, asserting that, along with her disorderly persons offense conviction, the order of forfeiture of public employment likewise should be expunged. Both the trial court and the Appellate Division concluded that, in the context of a disorderly persons offense, the expungement statute must be read broadly enough to include and also expunge the order of forfeiture of public employment. As a result, the trial court ordered that both the public official's conviction for a disorderly person offense and the concomitant order of forfeiture of public employment be expunged. The Appellate Division affirmed that judgment.

We disagree. Our primary task is to harmonize the provisions of the forfeiture of public employment statute, N.J.S.A. 2C:51-2, with those of the expungement statute, N.J.S.A. 2C:52-1 to -32. In so doing, we conclude that the provisions of the expungement statute are not intended to override -- that is, expunge -- a properly entered order of forfeiture of public employment. Stated differently, we conclude that, in the context of an expungement application and in order to give full expression to the Legislature's will, a mandatory order of permanent forfeiture of public employment must be severed from -- and preserved from the expungement of --the conviction that originally triggered the order of forfeiture. We therefore affirm so much of the judgment of the Appellate Division that upheld the entry of an expungement order, but reverse that part of the judgment of the Appellate Division that extended the reach of that order to include the order of forfeiture of public employment under appeal, which order of forfeiture is reinstated.

I.

Petitioner D.H. was employed as a detective in the Monmouth County Prosecutor's Office from March 1985 through October 1999. During June 1999, D.H. received a telephone call from an executive at a local employer who asked that D.H. conduct a criminal background check on a prospective employee; D.H. did so, using the Criminal Justice Information System (CJIS), a law enforcement computer system containing, among other things, criminal history records. D.H. well knew she was to make inquiries in CJIS only as part of an active investigation.

Although she initially asserted she had her supervisor's permission to do so, she later conceded she had not confirmed that authority in this instance. In the end, D.H. returned the call to the local employer, advising that the person who was the subject of the inquiry indeed had an arrest record.

On July 1, 1999, D.H. was interviewed by representatives of both the Monmouth County Prosecutor's Office and the New Jersey State Police concerning her unauthorized use of the CJIS. During the interview, D.H. admitted she had conducted CJIS inquiries that were not part of an active criminal investigation, but instead were on behalf of a private employer's internal investigations of its employees.

On September 28, 1999, D.H. was charged with a summons alleging that she had committed the disorderly persons offense of the purposeful and unauthorized access of a computer, in violation of N.J.S.A. 2C:20-32.*fn1 Pursuant to a plea agreement, on October 5, 1999, D.H. pled guilty to that charge and consented to the entry of an order of forfeiture of public employment. Specifically, the trial court inquired of D.H. in respect of the tendered forfeiture order as follows:

Q: And also with this plea, if the Court accepts this plea, there will be a forfeiture of public office, is that correct? Do you understand that?

A: Yes, I understand that.

Q: And do you understand with that, that means any public office, be [it] a schoolteacher, anything that is labeled as being a public office, you will not be able to participate or take that job, you understand that?

A: Yes, I do.

Q: And [your counsel] has explained that to you as well?

A: Yes, he has.

Before imposing sentence, the trial court explained that, "under [the forfeiture of public employment statute, the imposition of the forfeiture] is not left up to the Court's discretion. The discretion is either with the Prosecutor or the Attorney General." As a result, the trial court was "duty bound" to enter the order of forfeiture of public employment. The trial court, however, accounted for the effect of the required order of forfeiture of public employment in imposing sentence. Noting that it did "have some discretion with [D.H.'s] sentence[,]" the trial court explained that [a]s I advised you previously, I could impose a sentence of six months [incarceration, a] $1,000 fine, and a period of probation. However, in light of your unblemished past, and your public duty and service that you have rendered, the fact that there is an order of forfeiture that has been signed by [defense counsel] and [the prosecutor] and I affixed my signature to that, which forfeits you having any public employment forever, and disqualifie[s you] from holding any office or position of honor, trust, or profit in the State or any of its administrative or political subdivision[s], I am going to sentence you . . . to [a total of $110 in costs and penalties].

For those reasons, the trial court pointedly did not sentence D.H. to any term of incarceration, any term of probation or the imposition of any fines. The contemporaneously entered order of forfeiture of public employment, after reciting that D.H. had consented to the entry of that order, provided that "pursuant to N.J.S.A. 2C:51-2, [D.H.] shall forfeit her public employment and shall be forever disqualified from holding any office or position of honor, trust or profit under the State or any of its administrative or political subdivision[s]."

D.H. did not appeal her conviction, sentence or the order of forfeiture of public employment. Instead, on April 12, 2002, D.H. filed a timely petition for post-conviction relief pursuant to R. 3:22-1 to -12, seeking to vacate her guilty plea. That petition was heard by the same trial judge who originally accepted D.H.'s plea on October 5, 1999. In a June 13, 2003 unpublished decision, D.H.'s application for relief was denied. D.H. appealed. The Appellate Division noted that "[a]lthough [D.H.] was not alleging ineffective assistance of counsel, she contended that her [July 1, 1999] statement [to representatives of both the Monmouth County Prosecutor's Office and the New Jersey State Police concerning her unauthorized use of the CJIS] should have been suppressed and her plea of guilty vacated." Rejecting the grounds D.H. advanced on appeal, the Appellate Division found itself "in substantial agreement with the comprehensive and well-written eleven-page decision of [the trial judge] dated June 13, 2003." It, therefore, affirmed the denial of D.H.'s petition for post-conviction relief.

On July 8, 2008 -- almost nine years after her conviction -- D.H. filed a petition to expunge her conviction. After first determining that D.H. had made out a prima facie case entitling her to the expungement of her conviction and later concluding that the reasons advanced by the State in opposition were insufficient to bar the relief requested, the trial court addressed the effect of the order of forfeiture of public employment.*fn2 It noted that "[t]he expungement statute nowhere mentions that the expungement should not be granted where an order of disqualification has been entered against the petitioner as a consequence of the offense sought to be expunged, nor has case law determined this specific issue." Relying heavily on the provisions of N.J.S.A. 2C:52-32,*fn3 the trial court described D.H. as a "one time offender" and observed that "the purpose of expungement is the elimination of the collateral consequences of a criminal conviction imposed upon an otherwise law-abiding citizen." (citing In re Forfeiture of Public Office of Nuñez, 384 N.J. Super. 345, 349 (App. Div.), certif. denied, 187 N.J. 491 (2006)). It concluded that "[f]orfeiture and disqualification of public office are collateral consequences of a conviction" that are "eliminated by the order of expungement[.]" The trial court thus entered an order expunging D.H.'s conviction and, reasoning that the forfeiture of public employment was a collateral consequence of that conviction, similarly voiding the forfeiture order.

The State appealed and, in an unpublished opinion, the Appellate Division affirmed. Challenging both the expungement of D.H.'s conviction and the voiding of the order of forfeiture of public employment, the State asserted that expungement was improper because it vitiated the agreed-upon order of forfeiture which remained entitled to its full force and effect independent of the underlying conviction that originally triggered the entry of that order. The Appellate Division rejected those contentions, noting first that "[a] petitioner seeking expungement has the burden of establishing compliance with the provisions of N.J.S.A. 2C:52-3." (citing In re G.R., 395 N.J. Super. 428, 431 (App. Div.), certif. denied, 193 N.J. 275 (2007); footnote omitted). It explained that "[i]f 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.'" (quoting ibid.). The panel reasoned that a "forfeiture order is a mandated consequence of a petitioner's guilty plea and is inseparably tied to the underlying conviction." (citing In re Nuñez, supra, 384 N.J. Super. at 347). It explained that "'forfeiture of public employment is a collateral consequence of a criminal conviction, which is eliminated by an order of expungement.'" (quoting id. at 349 (citations, internal quotation marks and editing marks ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.