October 1, 2012
IN RE A.D., PETITION FOR EXPUNGEMENT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 96-06-1398.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 19, 2012
Before Judges Fisher and Waugh.
Petitioner A.D. appeals the December 8, 2011 order of the Law Division denying his petition for expungement pursuant to N.J.S.A. 2C:52-2(a)(2), which permits early expungement applications under certain circumstances. We affirm, but remand to the Law Division to permit A.D. to amend his petition to seek an ordinary expungement.
In 1996, A.D. pled guilty to one count of fourth-degree possession of child pornography, contrary to N.J.S.A. 2C:24-4(b)(5)(b). His term of probation ended on December 3, 2001. On April 11, 2011, which was approximately eight months short of the expiration of ten years from the termination of his probation, A.D. filed a petition for expungement. Because he filed prior to the end of the ten-year period, he was required by N.J.S.A. 2C:52-2(a)(2) to demonstrate that expungement was "in the public interest." The judge who heard his petition determined that he had not satisfied that requirement and denied expungement. Based upon our review of the record, we find no abuse of discretion with respect to that finding. In re Kollman, 210 N.J. 557, 577 (2012).
We note that by the time the petition was heard, the ten-year period had elapsed and A.D. was eligible for an ordinary expungement. As the Supreme Court observed in Kollman, once a petitioner proves the objective requirements for an ordinary expungement by a preponderance of the evidence, "he or she is 'presumptively entitled' to expungement." Id. at 570 (quoting In re LoBasso, 423 N.J. Super. 475, 488 (App. Div. 2012)). In the event it opposes the petition, the State bears the burden to overcome the presumption by a preponderance of the evidence. Ibid. As the Court held in Kollman, "the statute does not allow judges to reject expungement applications based on categorical or generic grounds. For example, the Legislature has identified particular offenses that are 'too serious' to qualify for expungement. See N.J.S.A. 2C:52-2(b). Courts cannot add to the list." Id. at 575. In addition, the State cannot simply assert that "bad crimes establish a 'need for availability of the records.'" In re J.N.G., 244 N.J. Super. 605, 610 (App. Div. 1990).
Because an ordinary expungement requires a lesser showing, the denial of the petition under the N.J.S.A. 2C:52-2(a)(2) standard is not dispositive of A.D.'s right to seek an ordinary expungement.*fn1 Consequently, we remand the matter to the Law Division. Once the petition and all required submissions have been amended and updated,*fn2 it should be considered as an ordinary expungement under N.J.S.A. 2C:52-2(a), using the standard articulated in Kollman.
Affirmed in part, remanded in part.