On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 02-05-0595.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued November 7, 2012
Before Judges Parrillo and Maven.
Petitioner T.S. appeals from an order of the Law Division denying his petition for expungement of a 2002 judgment of conviction for third degree distribution of a controlled dangerous substance (CDS), cocaine, within 1000 feet of a school zone, contrary to N.J.S.A. 2C:35-7. In denying the application, the trial court found that because of the relatively serious and ongoing nature of his criminal enterprise at the time of arrest, expungement would not be consistent with the public interest. Having considered the arguments raised in light of the record and applicable legal principles, we reject the petitioner's claims and affirm.
These are the relevant facts adduced from the record. In December 2001, the Ocean County Narcotic Strike Force prepared an undercover operation investigating T.S.'s sale of narcotics. On three separate occasions, an undercover officer purchased various quantities of cocaine from the then twenty-one-year-old petitioner. On December 12, 2001, T.S. and an officer arranged to meet in a Toys-R-Us parking lot, where T.S. sold him 0.8 grams of cocaine. At the same location, T.S. also sold the officer one gram of cocaine on December 19, 2001. T.S. later agreed to sell ten grams of cocaine to the officer on December 27, 2001, on which date T.S. received $400 from the officer and provided him with 8.8 grams of cocaine. This incident occurred within 1000 feet of Toms River High School North. Subsequently, police executed a search warrant on T.S.'s car and home, where they discovered another 26.5 grams of cocaine, as well as a scale containing cocaine residue, and illegal steroids.
On May 14, 2002, an Ocean County Grand Jury returned a nineteen-count indictment against T.S., charging him with siX counts of third degree possession of CDS, N.J.S.A. 2C:35-10(a)(1); six counts of third degree distribution of CDS within 1000 feet of a school, N.J.S.A. 2C:35-7; six counts of third degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a); and one count of second degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a). Ultimately, he pled guilty to one count of third degree distribution of CDS within 1000 feet of a school zone, and the remaining charges were dismissed. T.S. received a four-year term of imprisonment with a parole ineligibility period of ten months, as well as various penalties and fines. T.S. was terminated from parole on June 2, 2003.
In 2011, T.S. sought an expungement of his criminal record under the "early pathways" provision, pursuant to N.J.S.A. 2C:52-2. In his petition, T.S. stated that his conviction was a youthful indiscretion and that he wants to "continue with his life." In support of his claim, he asserted he is now married, is a homeowner, and has been gainfully employed for the last five years. He is a contract worker, specifically a Communications Technician, with Scholes Electric and Communications. T.S. argued that his criminal record has impeded his career advancement. During the motion hearing, he testified that his work hours were limited due to his inability to perform services on a full-time basis with two Scholes' clients, Morgan Stanley and Goldman Sachs, which thereby has reduced his earning capacity.*fn1 Although Scholes did not mandate a background check for contract workers, Morgan Stanley and Goldman Sachs required him to be screened to work on their sites. If he attempted to apply now with the conviction, he probably would be rejected.
In the years following his conviction, T.S. has not been charged with any additional criminal offenses. He stated that he has refrained from illegal drug use, as well as "disassociated himself from any activities that related to [his] conviction."
In opposing the expungement petition, the State focused on the nature of T.S.'s CDS offenses, including the quantity and weight of CDS sold and discovered, as evidenced by the number of counts in the indictment.*fn2 Considering the serious nature of his crime, the State argued that T.S. has failed to meet his burden of proving that expungement was in the public interest.
The Honorable Ronald E. Hoffman, J.S.C., heard oral argument on October 17, 2011. T.S. was the only person to testify. In denying relief, the trial court determined that T.S. did not sufficiently prove that his circumstances necessitated an "early pathways" expungement. Evaluating the nature of his offense, the motion judge reasoned that T.S. had been a drug dealer for "an ongoing period of time" and possessed drugs and other drug paraphernalia at the time of arrest. The motion judge specifically noted that T.S. sold to undercover officers three separate times and was initially indicted on nineteen counts, but pled guilty to only one count. Next, in assessing T.S.'s character and conduct since his conviction, the judge acknowledged T.S.'s positive life advancement and efforts to be a "law-abiding" citizen. He explained, however, that these requests required "something a little unusual, a little something out of the ordinary in order to qualify for that public interest exception." Ultimately, the trial court denied T.S.'s application.
T.S. raises two issues on appeal. First, that the trial court erred in failing to address which party bore the burden of proof in establishing the essential elements for an "early pathways" expungement. Second, that the court erred in finding his expungement was not in the public interest.
With respect to the burden of proof, it is clear that the petitioner has the burden to satisfy the expungement statute requirements. In re D.H., 204 N.J. 7, 18 (2010). Indeed, more recently, the Supreme Court held that "applicants must . . . demonstrate that expungement is in the public interest by a preponderance of the evidence." In re Kollman, 210 N.J. 557, 573 (2012). Nothing in the record indicates that the motion judge failed to follow this basic principle.
As to the substantive issue, we begin with a review of the expungement statute. N.J.S.A. 2C:52-2, which originally allowed for the grant of expungements after ten years, was amended in 2010 to add an "early pathways" provision. A court can now grant an expungement when: at least five years has expired from the date of . . . conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later; the person has not been convicted of a crime, disorderly persons offense, or petty disorderly persons offense since the time of the conviction; and the court finds in its discretion that expungement is in the ...