IN THE MATTER OF THE EXPUNGEMENT OF THE CRIMINAL RECORD OF A.H.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 29, 2013
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-10-2083.
Robert Gottlieb of the New York bar, admitted pro hac vice, argued the cause for A.H. (Law Offices of Brian J. Neary and Mr. Gottlieb, attorneys; Mr. Neary, of counsel; Brandy T. Malfitano, on the brief).
Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for the State of New Jersey (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Mr. Brater, of counsel and on the brief).
Before Judges Parrillo and Sabatino.
Defendant A.H. appeals from the May 22, 2012 order of the Law Division denying her petition for expungement of records relating to her arrest and convictions under Indictment No. 02-10-2083 pursuant to N.J.S.A. 2C:52-1 to -32. We affirm.
On October 23, 2002, a Monmouth County Grand Jury returned the aforecited indictment, charging A.H. with three counts of third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10(a)(1) (Counts One, Six and Nine); three counts of third-degree possession of CDS (cocaine) with intent to distribute, N.J.S.A. 2C:35-5(b)(3) (Counts Two, Seven and Ten); three counts of third-degree distribution of CDS (cocaine), N.J.S.A. 2C:35-5(b)(3) (Counts Three, Eight and Eleven); one count of fourth-degree possession of CDS (marijuana) with intent to distribute, N.J.S.A. 2C:35-5(b)(12) (Count Four); and one count of fourth-degree distribution of CDS (marijuana), N.J.S.A. 2C:35-5(b)(12) (Count Five). The crimes charged in Counts One through Five were the result of A.H.'s sale of cocaine and marijuana to an undercover officer on April 2, 2002. The crimes charged in Counts Six through Eight resulted from A.H.'s sale of cocaine to the same undercover officer on May 2, 2002. And the crimes charged in Counts Nine through Eleven involved A.H.'s June 5, 2002 sale of cocaine to that undercover officer. Defendant was arrested on June 18, 2002 on these separate warrants based on her sales of CDS to the undercover officer on these three separate occasions.
On September 29, 2003, pursuant to a negotiated plea agreement, defendant pled guilty to Counts Three, Eight and Eleven of the indictment. In exchange, the State agreed to dismiss the remaining charges and to recommend a probationary sentence. On January 9, 2004, defendant was sentenced, in accordance with the plea agreement, to concurrent two-year terms of non-custodial probation. As bargained, the remaining charges were all dismissed. Other than these charges, defendant had an unblemished record.
Defendant apparently completed her probationary sentence successfully and has been neither arrested nor convicted of any offense or crime since that time. Approximately eight-and-one-half years after her conviction, on May 9, 2012, defendant filed a petition to expunge all records relating to her arrest and convictions under Indictment No. 02-10-2083. The Law Division judge denied the petition, relying on In re Ross, 400 N.J.Super. 117, 122 (App. Div. 2008), and concluding that defendant committed the crimes charged in Counts Three, Eight and Eleven on three different occasions and, therefore, her convictions on those counts qualified as convictions for "prior or subsequent" crimes, which were precluded from expungement under the applicable statute, N.J.S.A. 2C:52-2(a). Furthermore, because defendant was not entitled to expungement of her indictable convictions, the judge ruled that N.J.S.A. 2C:52-14(c) precluded expungement of the charges that were dismissed as a result of the plea agreement. See N.J.S.A. 2C:52-14(c) ("A petition for expungement filed pursuant to this chapter shall be denied when . . . [i]n connection with a petition under section 2C:52-6, the acquittal, discharge or dismissal of charges resulted from a plea bargaining agreement involving the conviction of other charges.").
On appeal, defendant raises the following issues:
I. THE COURT BELOW ERRED IN DENYING THE EXPUNGEMENT OF THE CDS CONVICTIONS.
A. A.H. is a "One-Time Offender" Who Has Not Been Convicted of a "Prior or Subsequent" ...