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In the Matter of Application

December 14, 2012

IN THE MATTER OF APPLICATION FOR EXPUNGEMENT OF THE CRIMINAL RECORD OF P.M.


On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. M-464-11.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 5, 2012

Before Judges Axelrad and Haas.

Petitioner P.M. appeals the denial of his petition for expungement filed in the Law Division pursuant to N.J.S.A. 2C:52-1 to -32. We affirm.

Petitioner was charged in fifty counts of a sixty-four count Middlesex County indictment with nine counts of third-degree burglary, seven counts of fourth-degree unlawful theft or receipt of a credit card, twenty-nine counts of third-degree fraudulent use of a credit card, three counts of third-degree attempted fraudulent use of a credit card, one count of third-degree theft by deception, and one count of third-degree conspiracy, for conduct occurring at the Rutgers University, New Brunswick campus and nearby department stores between December 11, 1998 and April 9, 1999. On December 6, 1999, petitioner entered a guilty plea to three counts of third-degree burglary, N.J.S.A. 2C:18-2; three counts of third-degree fraudulent use of a credit card, N.J.S.A. 2C:21-6h; and one count of third-degree theft by deception, N.J.S.A. 2C:20-4.

According to the presentence report, defendant and one of his three co-defendants entered a locker at the Werblin Gym at Rutgers on March 9, 1999 and took two of the victim's credit cards. On that same date, they used one of the credit cards at the Nobody Beats the Wiz store in Edison to purchase $1,089.64 in merchandise, and used the other at the Manhattan Carving Company store in Edison to buy $10.55 in merchandise. The next day, defendant and the same co-defendant used one of the victim's credit cards at the Caldor store in South Plainfield to purchase $5.94 in merchandise. In addition, between December 11, 1998 and March 10, 1999, defendant and the co-defendant took property, worth more than $18,000, "from numerous stores in Middlesex, Somerset, and Bergen Counties by using deceptive purposes with the intention to deprive the victims of their property/merchandise."

On April 9, 1999, the Rutgers University Police set up a physical surveillance at the Werblin gym. On that date, the police saw defendant and the same co-defendant enter another victim's locker. Petitioner and the co-defendant then left the gym and entered the victim's vehicle. At that point, they were arrested.

On March 20, 2000, petitioner was sentenced to five years probation, conditioned upon 180 days in the county jail. He was required to pay mandatory fines and penalties, together with $4,549.42 in restitution to nine separate victims. Petitioner completed his probation on, and paid all outstanding financial obligations by, February 3, 2003.

In July 2011, petitioner filed a petition for expungement of his convictions. On January 26, 2012, Judge Frank M. Ciuffani denied the petition in a written decision and order. The judge found that, because petitioner had committed multiple crimes, he was not eligible to have his petition considered under N.J.S.A. 2C:52-2a.

Petitioner appeals. He argues the judge erred by not treating him as a "one-time offender" for purposes of expungement. He asserts "that there was only one criminal case stemming from a single arrest and a single indictment for crimes directly related to each other." We disagree and, accordingly, affirm.

Expungement is a purely statutory remedy. It is intended to provide relief to "the one-time offender," not to "periodic violators of the law." N.J.S.A. 2C:52-32. For that reason, repetitive offenders are barred from relief under most circumstances.

On appeal, petitioner relies upon our decision in In re Application of Patrick Fontana, 146 N.J. Super. 264 (App. Div. 1976). In Fontana, we held that numerous crimes committed by the defendant over a one-week period contained in six indictments, but pled to on the same day, constituted "a conviction" for purposes of the expungement statute then in effect.*fn1 Ibid. We permitted the expungement of multiple offenses under the circumstances of that case because we viewed the criminal conduct at issue "as akin to a 'one night spree' which has generally received special consideration in sentencing[.]" Id. at 267 (citation omitted).

However, our decision in Fontana was based upon the specific language of the expungement statute then in effect, N.J.S.A. 2A:164-28, ...


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