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In the Matter of the Expungement of the Criminal Record of R.K.

February 28, 2012

IN THE MATTER OF THE EXPUNGEMENT OF THE CRIMINAL RECORD OF R.K., PETITIONER-APPELLANT.


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

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 19, 2011

Before Judges Sabatino and Ashrafi.

Petitioner R.K. appeals from a May 25, 2011 order of the Law Division denying with prejudice his petition to expunge all records of his prior arrests and offenses. The Bergen County Prosecutor's Office opposed the petition in its entirety but now concedes on appeal that R.K.'s 2001 conviction for violating a municipal loitering ordinance should be expunged. It continues to oppose the appeal as to the more serious charges. We affirm the order of the Law Division in part and reverse it in part.

From 2001 to 2004, when petitioner was in his twenties, he was arrested and charged with offenses three times. In July 2001, he was charged with disorderly persons criminal mischief, N.J.S.A. 2C:17-3a(1), and loitering, a violation of a municipal ordinance. On August 7, 2001, he pleaded guilty in the Lyndhurst Township Municipal Court to the loitering charge and the criminal mischief charge was dismissed.

In July 2004, petitioner was arrested and charged with disorderly persons simple assault, N.J.S.A. 2C:12-1a. That charge was dismissed in September 2004.

In October 2004, petitioner was arrested and charged with three indictable crimes: robbery, N.J.S.A. 2C:15-1, aggravated sexual assault, N.J.S.A. 2C:14-2a(3), and impersonating a public servant or law enforcement officer, N.J.S.A. 2C:28-8. The State alleged that petitioner posed as a police officer, displayed handcuffs to two women in a motel room, and then sexually assaulted them and robbed them of money. In 2005, petitioner applied for admission into the Pretrial Intervention Program (PTI) under Rule 3:28. The PTI Director denied the application because of the seriousness of the charges. On petitioner's appeal of the denial to the Law Division, the court directed that petitioner be admitted to PTI over the State's objection.

The State took no appeal from the court's decision. Instead, it entered into a plea agreement with petitioner in December 2005 by which he agreed to plead guilty to an accusation charging fourth-degree impersonation of a police officer, N.J.S.A. 2C:28-8b, and third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a. In exchange, the prosecutor agreed to postpone sentencing so long as petitioner complied with the conditions of PTI supervision for a period of three years, after which the charges would be dismissed. Petitioner successfully completed the PTI program, and all the charges were dismissed by order of the court on December 17, 2008.

In July 2009, petitioner filed a petition to expunge all records of his arrests and charges under N.J.S.A. 2C:52-1 to -32. After some delays not relevant to this appeal, the matter was scheduled for a hearing in January 2011 pursuant to N.J.S.A. 2C:52-9. The State objected to expungement of the 2001 ordinance conviction and the record of the October 2004 indictable charges. The State contended it had a need to maintain records of petitioner's involvement in several offenses that culminated in the very serious charges of October 2004.

The Law Division considered the written submissions and heard argument on May 25, 2011. It denied the petition for expungement, citing N.J.S.A. 2C:52-14b and stating orally from the bench that its decision was based on the factual circumstances of the October 2004 charges and petitioner's other contacts with law enforcement authorities.

Petitioner appeals the court's ...


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