June 1, 2011
IN THE MATTER OF THE APPLICATION OF M.G. FOR THE EXPUNGEMENT OF RECORDS.
On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. M-306-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: May 11, 2011
Before Judges Axelrad and Lihotz.
Defendant appeals from an October 21, 2010 order of the Chancery Division denying his application for expungement of records pursuant to N.J.S.A. 2C:52-l to -32. We affirm.
Defendant was charged in fourteen counts of a sixteen count indictment, with other individuals, of third-degree conspiracy, six counts of third-degree burglary, five counts of third-degree theft by unlawful taking, fourth-degree theft by unlawful taking, and third-degree fencing/dealing in stolen property, for conduct occurring at the Rutgers University Livingston College campus between November 15, 1991 and February 11, 1992, when he was nineteen years old. On February 4, l993, defendant entered negotiated guilty pleas to four counts of third-degree burglary, N.J.S.A. 2C:18-2, occurring on November l5, December 5, 8, and 12, 1991; two counts of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3, occurring on December 8 and l2, 199l; and one count of fourth-degree theft by unlawful taking, N.J.S.A. 2C:20-3, occurring on December 5, 1991. Defendant was sentenced on all charges on April 5, 1993. He received a five-year probationary sentence and 200 hours of community service, and was directed to make restitution in the amount of $1,664.23. The other counts of the indictment pertaining to defendant were dismissed. Other than these charges, defendant had an unblemished record.
Defendant apparently completed his probationary sentence successfully and was neither arrested nor convicted of any offense or crime since that time. On June 9, 2010, defendant filed a petition to expunge his arrest and conviction for burglary and theft. Judge Ciuffani denied the petition, relying on In re Ross, 400 N.J. Super. 117, 122 (App. Div. 2008), and concluding the applicable statute, N.J.S.A. 2C:52-2(a), "preclude[s] expungement of a crime committed on a subsequent occasion regardless of whether the conviction date was the same as the conviction date for a crime committed on an earlier occasion." This appeal ensued.
On appeal, defendant urges that the "one-night spree" doctrine of In re Patrick Fontana, 146 N.J. Super. 264, 266-67 (App. Div. l976), survives Ross. In Fontana, we held that numerous crimes committed by the defendant over a one-week period contained in six indictments but pled to on the same day constituted "a conviction" for purposes of the expungement statute then in effect.*fn1 Ibid. We permitted the expungement of the multiple offenses under the circumstances of the case because we viewed the criminal conduct at issue "as akin to a 'one night spree' which has generally received special consideration in sentencing[.]" Id. at 267 (citation omitted).
In support, defendant cites to dicta in State v. A.N.J., 98 N.J. 421, 427 n.3 (1984), in which the Court stated "[w]e need not cast doubt upon the view that a 'one-night spree' could still constitute a one-time offense[,]" citing Fontana, supra, 146 N.J. Super. at 267. Defendant thus argues he qualifies for expungement and urges us to assume original jurisdiction, R. 2:10-5. He emphasizes that his conduct was all part of the same indictment, occurred over a short span of twenty-seven days, involved a common theme of burglary and theft offenses, and was directed at the same victim - Rutgers University.
We are not persuaded by defendant's arguments. As noted in Ross, supra, 400 N.J. Super. at 120-22, the expungement statute was amended in 1979, subsequent to Fontana, to provide, in pertinent part:
Indictable Offenses. In all cases, except as herein provided, wherein a person has been convicted of a crime under the laws of this State and who has not been convicted of any prior or subsequent crime . . . [the person] may, after the expiration of a period of l0 years from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later, . . . [apply for expungement of] such conviction and all records and information pertaining thereto . . . [N.J.S.A. 2C:52-2(a) (emphasis added).]
We reasoned that "when the Legislature enacted N.J.S.A. 2C:52-2, it deliberately chose to alter the more expansive view of expungement that had existed under N.J.S.A. 2A:164-28 and was exemplified by our decision in Fontana," and concluded that "when the Legislature chose the language 'subsequent crime' it intended to preclude expungement of a conviction where an individual commits a second crime even if the two crimes result in a single sentencing and conviction date." Ross, supra, 400 N.J. Super. at 123-24. We discern no basis to hold otherwise. Accordingly, we are satisfied Judge Ciuffani correctly applied N.J.S.A. 2C:52-2(a) and determined defendant was not entitled to expungement relief because he pled guilty to at least two indictable offenses even though the crimes resulted in a single sentencing and conviction date.
Even if we were to accept for present purposes the continued viability of Fontana based on the dicta in A.N.J., supra, 98 N.J. at 427 n.3, the record does not support the application of the "single spree" doctrine to defendant's conduct. Defendant pled guilty to seven indictable crimes occurring over a span of twenty-seven days. Although the crimes were similar as they involved theft-related offenses, they occurred on four separate dates - November l5, December 5, December 8, and December 12, 199l - and targeted three separate locations on the Livingston College campus - Tillet Hall, Kilmer Library, and the Student Center. Moreover, there is no evidence the items of movable property stolen by defendant were related, such as component parts of a computer.