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State of New Jersey v. Olivia Howard

December 26, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
OLIVIA HOWARD, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-04-0391.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 11, 2012

Before Judges Reisner and Harris.

Defendant Olivia Howard appeals from an October 21, 2011 order denying reconsideration of an April 21, 2011 order, which in turn denied her petition for expungement of her 1991 conviction for third-degree death by auto, N.J.S.A. 2C:11-5. For the reasons that follow, we affirm.

I

So that the factual record is clear, we quote the decision of our Supreme Court, which in deciding to suspend Howard's law license for three months, accepted the following facts describing the crime of which she was convicted:

Respondent was admitted to the New Jersey bar in 1981. Her husband, Frank Howard, also a member of the bar, was a police officer in Newark who maintained a part-time legal practice. The two shared "staff, space, resources and income" at their law office in East Orange, New Jersey. . . . On the afternoon of July 3, 1989, Olivia and Frank Howard met to discuss some of their financial difficulties. With her husband in the passenger seat, respondent drove to a construction site where she parked her car so they could talk. An argument ensued, leading Mr. Howard to put the gear shift into reverse, exit the vehicle and walk away. When respondent backed up the car, the passenger door "flew open" and became caught in a fence surrounding the construction site. The top hinge of the car door broke, causing the door to drag as respondent drove. Respondent then put the car in forward and drove alongside her husband, following his pace. As she drove, she pleaded with him to assist her in securing the door. He ignored her pleas and continued walking. After following Mr. Howard the wrong way down two one-way streets, respondent finally pulled into the driveway of a health clinic and came to a stop when her husband approached the front of the car. She exited the car and once again sought his assistance. The two were unable to resolve their dispute at that time. Respondent then "got back into the car . . . hit the gas . . . and reached for the car door at the same time . . . ." When she felt something under the car, she "slammed on the brakes with both of [her] feet . . . ." Mr. Howard was wedged underneath the car. He died later that day as a result of his injuries.

A Bergen County grand jury charged respondent with murder. At trial, respondent testified that she never intended to strike Frank Howard with her car. She maintained that her husband stepped in front of the car as she was accelerating, and that she did not see him because she was reaching over in an attempt to close the damaged passenger door. A jury acquitted respondent of murder, but found her guilty of the lesser included offense of death by auto in violation of N.J.S.A. 2C:11-5. [] The trial judge sentenced respondent to five years probation, 500 hours of community service, $17,500 in fines and penalties, and revoked her driving privileges for two years. [In re Howard, 143 N.J. 526, 528-29 (1996)(footnote omitted).]

Howard paid most of the fines and penalties, but failed to pay the last $2000, which the Probation Department reduced to a judgment. In her expungement application, Howard contended that she "forgot" about the judgment and did not pay it off until 2003, when she sold a piece of property on which the judgment was a lien. The criminal case was formally discharged on January 2, 2003.

In an unrelated matter, Howard was disbarred by consent in 2000, In re Howard, 163 N.J. 92 (2000). The reasons for Howard's consent to disbarrment are in dispute on this record. However, there is no dispute that at the time Howard consented to disbarrment, the Office of Attorney Ethics (OAE) had investigated a complaint against her and had determined that she improperly disbursed $200,000 from her attorney trust account.

In connection with the OAE investigation, the New Jersey Lawyers' Fund for Client Protection (Fund) filed a lawsuit against Howard seeking to recoup the $200,000. A dispute arose over whether that lawsuit had been settled. In 2010, we held that Howard had not authorized her attorney to settle the case, and we remanded the matter to the Law Division "for trial." N.J. Lawyers' Fund for Client Protection v. Howard, No. A-3461-08 (App. Div. April 14, 2010), certif. denied, 203 N.J. 92 (2010).*fn1

In 2009, prior to the ten-year period then required by the expungement statute, N.J.S.A. 2C:52-2, Howard filed her first expungement petition. By order dated December 7, 2009, Judge Sherry Hutchins-Henderson denied the petition, concluding in a written opinion that the ten-year period began to run on January 2, 2003, and the petition was therefore filed prematurely.

After the statute was amended to permit expungement sooner than ten years in certain circumstances, N.J.S.A. 2C:52-2a(1), -2a(2), Howard filed a second petition in July 2010. That petition was also denied on April 21, 2011, in light of the seriousness of ...


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