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In the Matter of the

January 10, 2012

IN THE MATTER OF THE APPLICATION FOR EXPUNGEMENT OF THE CRIMINAL RECORDS OF MARINO LOBASSO.


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

The opinion of the court was delivered by: Ostrer, J.S.C.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

APPELLATE DIVISION

Telephonically argued November 9, 2011 -- Decided January 10, 2012

Before Judges Axelrad,*fn1 Sapp-Peterson and Ostrer.

The opinion of the court was delivered by OSTRER, J.S.C. (temporarily assigned).

Petitioner appeals from a February 9, 2011 Law Division order denying his application to expunge records of his 2005 conviction for third-degree eluding, N.J.S.A. 2C:29-2b. He relies on the recent enactment that reduced the waiting period for expungement of certain indictable offenses from ten years to five years after the date of conviction, payment of fine, completion of probation or parole, or release from incarceration. L. 2009, c. 188, § 1, approved January 12, 2010, codified at N.J.S.A. 2C:52-2a(2). A petitioner may utilize this early pathway to expungement if the court finds "in its discretion that expungement is in the public interest, giving due consideration to the nature of the offense, and the applicant's character and conduct since conviction." Ibid. Construing the 2010 amendment, we conclude that the court may consider factors in addition to those pertaining to the "nature of the offense" and the applicant's "character and conduct since conviction." The court may also consider cognizable evidence pursuant to Rule 1:6-6 related to an arrest on a charge that was ultimately dismissed, although the court may not consider the arrest itself as evidence of guilt. State v. Brooks, 175 N.J. 215, 229 (2002). Applying these legal conclusions, we affirm the trial court's order denying expungement.

I.

Petitioner prematurely filed a verified petition seeking expungement on October 29, 2010, which was less than five years after he completed probation on January 24, 2006. Cf. N.J.S.A. 2C:52-2a(2) (requiring at least five years after completion of probation before eligibility for expungement of conviction of indictable offense). After the court alerted the State that the matter had been filed under the early pathway provision, the State filed opposition by letter brief dated January 20, 2011, to which was attached various exhibits. Petitioner filed no reply. The petition was heard February 9, 2011, shortly after the prerequisite five-year period expired. The court considered documentary evidence pertaining to the nature and circumstances of the eluding offense, and petitioner's conduct and character since the offense. We address these in turn.

A.

According to a police report that the State submitted to the court, on June 19, 2004 at about 4:30 p.m., a Brick Township police patrolman observed the operator of a red, white and black Honda motorcycle, wearing a helmet with matching colors, fail to stop at a red light at an intersection, and then turn left across four lanes of moderate traffic nearly striking another vehicle. The patrolman was able to determine that the registration, in petitioner's name, was expired. The patrolman attempted to conduct a motor vehicle stop, activating warning lights and siren. The motorcycle then sped off, leading the officer in a pursuit through local streets, until the motorcycle entered the Garden State Parkway, at which point the officer terminated pursuit.

Two days later, petitioner reported to police that his motorcycle had been stolen the day of the pursuit. The patrolman who conducted the pursuit responded to petitioner's home to investigate the theft report. The officer suspected, based on petitioner's appearance and the design of the motorcycle helmet he observed at petitioner's home, that the petitioner had operated the motorcycle he claimed had been stolen. Petitioner ultimately admitted he had operated the vehicle on June 19 and his theft report was false. In an unsigned transcript of a Mirandized*fn2 statement, petitioner admitted that he continued driving knowing that a police officer wanted him to stop, his speed exceeded the officer's, and the officer ultimately fell out of view. He stated that after he entered the Garden State Parkway, he drove to a friend's house, and stored the motorcycle in his shed.

Petitioner was initially charged by summons on June 22, 2004 with filing a false report, N.J.S.A. 2C:28-4b, and eluding, N.J.S.A. 2C:29-2b. He was also charged with numerous motor vehicle violations, including driving an unregistered motor vehicle, N.J.S.A. 39:3-4, failing to observe traffic signals, N.J.S.A. 39:4-81, failure to maintain lane (two times), N.J.S.A. 39:4-88b, reckless driving (four times), N.J.S.A. 39:4-96, improper left turn, N.J.S.A. 39:4-123b, failure to signal, N.J.S.A. 39:4-126, and failure to carry motor vehicle insurance coverage, N.J.S.A. 39:6B-2. He was later indicted in a single-count indictment for second-degree eluding, N.J.S.A. 2C:29-2b.

Petitioner entered a plea on October 12, 2004 to an amended charge of third-degree eluding. The State promised to recommend a non-custodial probationary term, and six months driver's license suspension. The State also promised to seek dismissal of the false report charge, as well as all the motor vehicle tickets, except the one that charged driving an unregistered motor vehicle.

The court sentenced petitioner on January 14, 2005 in accord with the plea agreement, imposing eighteen months probation on the eluding conviction. The court found aggravating factor nine, the need to deter, was in balance with mitigating factors seven, the absence of a prior record of delinquency or criminal activity (petitioner was thirty-eight years old), and ten, amenability to probation.*fn3 N.J.S.A. 2C:44-1a(9), b(7), b(10).

B.

Petitioner was discharged from probation early, on January 24, 2006. He had not been convicted of any crimes or offenses since his eluding conviction.

He asserted in his verified petition that he was a homeowner (he had become a Pennsylvania resident), and had been gainfully employed, although he provided no details or documentary evidence of where and when he was employed. He provided character references in the form of two unsworn letters, one from his former wife and another from a friend who is employed as a police officer in Pennsylvania.

His former wife stated that she had known petitioner for twenty-seven years. They divorced young. He dutifully paid child support and "went over and above his obligations as a father." Without suggesting a basis in personal knowledge, she also asserted his conviction caused him financial hardship. He lost his home in New Jersey, and she and petitioner were unable to afford to send their son to college. Petitioner had worked in construction, where background checks were not necessary. His criminal record prevented him from obtaining employment with health insurance. She alleged that he desperately needed medical insurance based on his medical condition.

Petitioner's friend stated that he had known petitioner for thirteen years. They first met when petitioner was his supervisor at his place of work. He stated that petitioner was a dedicated father, and had been a mentor to him.

At oral argument, petitioner's counsel also provided the court documents from Goodyear Tire and Rubber Co. and Federal Express, to support his argument that petitioner had applied for employment with Goodyear in 2005 (when petitioner was still on probation) and Federal Express in 2007, ...


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