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In the Matter of the Expungement Petition of J.B.

June 21, 2012

IN THE MATTER OF THE EXPUNGEMENT PETITION OF J.B.


On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. EX-87-11.

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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Telephonically argued April 16, 2012

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

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

This appeal requires us to interpret the 1980 statute permitting expungement of juvenile adjudications. L. 1980, c. 163, codified at N.J.S.A. 2C:52-4.1. J.B. appeals from the trial court's denial of his petition to expunge three adjudications of delinquency, and an adult conviction for theft. We conclude the trial court misinterpreted the 1980 statute and therefore reverse regarding the delinquency adjudications. However, because ten years have not elapsed since petitioner completed his adult sentence, N.J.S.A. 2C:52-2(a), and he failed to establish that expungement after just five years was "in the public interest," N.J.S.A. 2C:52-2(a)(2), we affirm as to the adult conviction.

I.

Petitioner, then almost thirty years old, filed his amended verified expungement petition on September 20, 2011. He sought to expunge adjudications that he was delinquent in 1997 on burglary and criminal mischief charges, N.J.S.A. 2C:18-2 and N.J.S.A. 2C:17-b(3); and in 1999 on charges he possessed a machine gun or instrument or device adaptable for use as one, N.J.S.A. 2C:39-5(a). He received probation in both cases. He also petitioned to expunge his March 1, 2002 adult conviction for third-degree theft, for which he received a sentence of two years of probation, conditioned on 364 days of incarceration in the county jail.

Petitioner verified he was married with two children, has been gainfully employed as a union worker for ten years, and had no arrests since the one in April 2001 that led to the 2002 conviction. In a supplemental unsworn letter, he explained he was deeply involved in his children's lives, and sought expungement to remove an impediment to his serving as a youth football coach for his son, and a softball coach for his daughter. The State opposed the petition, and the trial court denied it.

The court relied on its interpretation of N.J.S.A. 2C:52-4.1(a), which states in an unnumbered paragraph, "For purposes of expungement, any act which resulted in a juvenile being adjudged a delinquent shall be classified as if that act had been committed by an adult." Based on petitioner's adjudications of delinquency, the court deemed him to have been convicted of adult crimes of burglary, criminal mischief, and firearms possession. The court then concluded petitioner's adult conviction could not be expunged pursuant to N.J.S.A. 2C:52-2, which prohibits expungement of a criminal conviction if the petitioner has "been convicted of any prior or subsequent crime."

The court also denied expungement of the juvenile adjudications based on N.J.S.A. 2C:52-4.1(a)(1), which states that N.J.S.A. 2C:52-2 shall govern petitions to expunge a juvenile adjudication of an act that would constitute a crime if committed by an adult. Applying N.J.S.A. 2C:52-2, the court concluded that expungement of the juvenile adjudications was not permitted for the same reason expungement of the adult conviction was not permitted - petitioner was deemed convicted of a prior or subsequent crime.

II.

We conclude the trial court misconstrued the 1980 statute. Although we agree petitioner's juvenile adjudications were not subject to expungement under N.J.S.A. 2C:52-4.1(a), N.J.S.A. 2C:52-4.1(b) provided an alternative basis for expunging petitioner's entire record of multiple juvenile adjudications. Also, in denying expungement of the adult conviction, the court mistakenly applied the quoted sentence, "For purposes of expungement, any act which resulted in a juvenile being adjudged a delinquent shall be classified as if that act had been committed by an adult." In view of the legislative history and canons of statutory construction, we conclude the sentence was intended solely to apply to petitions to expunge juvenile adjudications. Nonetheless, the court correctly denied expungement of the adult conviction because the petition was premature.

A.

The 1980 statute must be interpreted in light of the problem it was designed to solve, which was the prior law's omission of an avenue for expunging juvenile adjudications. See Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction § 22.29 (7th ed. 2009) (amended statute should be interpreted in light of court decisions that may have prompted the amendment).

We begin with the Legislature's adoption in 1979 of Chapter 52 of the Criminal Code, the comprehensive expungement statute.

L. 1979, c. 178, codified at N.J.S.A. 2C:52-1 to -32 (the 1979 Act). The 1979 Act authorized expungement of criminal convictions after ten years, provided a petitioner had not been convicted of a prior or subsequent crime, and had not been convicted of two or more disorderly persons or petty disorderly persons offenses. N.J.S.A. 2C:52-2. Expungement of a disorderly, or petty disorderly persons offense was permitted after five years, provided the petitioner had not been convicted of a prior or subsequent crime, or another two disorderly, or petty disorderly persons offenses. L. 1979, c. 178, § 110.*fn2

As we later held, upon meeting these statutory requirements, a petitioner became "presumptively entitled" to expungement. In re J.N.G., 244 N.J. Super. 605, 610 (App. Div. 1990). However, the court may deny expungement if the State proves "[t]he need for the availability of records" outweighs the "desirability of having a person ...


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