On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 00-08-1706.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 20, 2011 - Decided Before Judges Fisher and Sapp-Peterson.
Petitioner appeals the June 18, 2010 order denying his application for expungement of his prior criminal conviction. We affirm.
Petitioner was indicted on twelve counts of narcotics-related offenses arising out of an undercover operation conducted by the Atlantic County Prosecutor's Office. As part of a negotiated plea, he pled guilty to one count of distribution of a controlled dangerous substance (Ecstasy),N.J.S.A. 2C:35-5, and in exchange the State agreed to dismiss the remaining eleven counts contained in the indictment. In addition, the State agreed not to pursue charges arising out of events that occurred at another nightclub on two separate occasions and to recommend probation. The court sentenced him, in accordance with the agreement, to a three-year probationary term, conditioned upon completion of a forty-five-day custodial sentence to be served at the county jail. The court also imposed the appropriate fines and penalties. He successfully completed all of the terms and conditions of his probation on September 13, 2002.
On March 18, 2010, petitioner sought to expunge his conviction. He petitioned the Law Division pursuant to an amendment to the expungement statute permitting certain persons to petition for expungement less than ten years following a conviction, payment of fine, and satisfactory completion of probation or release from incarceration. See N.J.S.A. 2C:52-2a.
The court conducted oral argument, during which petitioner's attorney argued that petitioner was only twenty-three years old when he committed the offense, admitted his guilt at the time of his arrest and, since that time, had completed his education, volunteered in the community, maintained gainful employment and had become a model citizen.
Counsel argued further that the impact of the conviction has prevented petitioner from pursuing further activities, including serving as a wrestling coach, participating with youth in the Big Brothers and Big Sisters Program, and teaching boating safety.
The court was satisfied that petitioner met the first two requirements for relief: (1) at least five years had passed since he had completed probation; and (2) he had not been convicted of any other offense since the date of his conviction. N.J.S.A. 2C:52-2a(2). Noting that the State opposed the motion, the court directed the State to respond to the third requirement for relief, namely, whether expungement was in the public interest. Ibid.
The State argued that petitioner had already received favorable treatment, noting that he received the benefit of having eleven counts dismissed, which included a second-degree offense for which he would have faced incarceration. Instead, he pled guilty to a third-degree offense and received probation. The State noted further that petitioner was caught selling Ecstasy in a club on three separate occasions but was only required to plead guilty to one sale.
The court reserved decision and issued a written opinion denying the petition. In finding that expungement was not in the public interest, the court stated:
Petitioner's activities and behavior since his discharge from probationary supervision are consistent with those of a good citizen who has benefited from the rehabilitative aspects of community supervision. The[c]court has also considered the standard of liberality that should be afforded to[p]etitioners seeking expungement. In re Expungement Application of P.A.F., 176 N.J. 218 (2003). However, this [c]court must consider more than these factors. The[c]court must also consider the nature of the offense and the public interest. Due to the relatively serious nature of the offense, this [c]court cannot grant the current petition for expungement.
Ecstasy is a designer drug that the [p]petitioner sold, on more than one occasion, purely for monetary gain. These were not sales out of financial desperation or unrelenting habit. At the time of the sales, he was gainfully employed as a manager at a water sports store. Further, it is in the public interest not to expunge the [p]petitioner's conviction at this time. The community has a right to be aware of the [p]petitioner's conviction for drug distribution. The public is not benefited by remitting the adverse consequences stemming from a publicly accessible criminal conviction. Those who would consider the [p]petitioner's application to work with children or adolescents have the need to know that their would-be mentor has a conviction for drug distribution. Such information is necessary for a complete picture of the [p]petitioner and his entire background. This information is critical for ...