May 29, 2013
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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" Crime.
1. The Trial Court Properly Recognized The Continued Viability of the "Single Spree" Doctrine.
2. The CDS Convictions Constitute a "Single Spree."
B. The Court Should Remand The Case Back to The Trial Court for a Determination of The Remaining Conditions of Expungement.
1. The Nature of the Offense Does Not Warrant the Denial of Expungement Relief.
2. A.H.'s Exemplary Character and Conduct Since Conviction Demonstrates that Expungement Of the CDS Convictions Is Justified.
3. Additional Factors Warrant Expungement of the CDS Convictions.
C. A.H. Needs expungement more than the public needs Access to the criminal records.
II. THE TRIAL COURT ERRED BY NOT EXPUNGING THE DISMISSED CHARGES.
We find these arguments lack merit, Rule 2:11-3(e)(2), and therefore affirm substantially for the reasons stated by Judge Mullaney in his May 22, 2012 written opinion. We add only the following comments.
Defendant argues that all the criminal activity in the one indictment resulted from a single undercover "sting" operation and thus urges that the "one night spree" doctrine of In re Fontana, 146 N.J.Super. 264, 266-67 (App. Div. 1976), which survives Ross, applies here. We disagree.
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. Ibid. We permitted the expungement of the multiple offenses under the circumstances of the 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, the expungement statute was amended in 1979, subsequent to Fontana, to provide in pertinent part:
Indictable Offenses. In all cases, except as herein provided, wherein a person has been convicted of a crime under the laws of this State and who has not been convicted of any prior or subsequent crime . . . [the person] may, after the expiration of a period of 10 years from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later, . . . [apply for expungement of] such conviction and all records and information pertaining thereto. . . .
[N.J.S.A. 2C:52-2(a) (emphasis added).]
In Ross, supra, we reasoned that "when the Legislature enacted N.J.S.A. 2C:52-2, it deliberately chose to alter the more expansive view of expungement that had existed under N.J.S.A. 2A:164-28 and that was exemplified by our decision in Fontana[, ]" and concluded that "when the Legislature chose the language 'subsequent crime' it intended to preclude expungement of a conviction where an individual commits a second crime even if the two crimes result in a single sentencing and conviction date." 400 N.J.Super. at 123-24. We reasoned thus:
We conclude that the statute is clear and unambiguous on its face and is susceptible of only one interpretation. Unquestionably, the words "prior" and "subsequent" do not modify the term "conviction." Instead, they modify the term "crime, " which leads to the conclusion that if two crimes are committed on separate occasions, they are precluded from expungement regardless of whether the two crimes carry a single sentencing date and therefore a single date of conviction. We agree with the State's contention that had the Legislature intended to permit the result petitioner urges, it would have used the language "and who has no prior or subsequent convictions."
[Id. at 122.]
We discern no basis to hold otherwise. In fact, most recently, in In re Expungement of the Criminal Records of R.Z., 429 N.J.Super. 295 (App. Div. 2013), we reaffirmed Ross, noting that "the current law precluded the result we reached under the prior law in [Fontana.]" Id. at 301. We further held that, in cases where a petition lists multiple offenses, "a petitioner bears the burden to show his or her crimes were committed concurrently, that is, that one crime was not committed 'prior or subsequent[ly]' to the other[, ]" because the absence of a conviction for any "prior or subsequent crime" is a threshold requirement of expungement. Id. at 302.
Even under Fontana, the record in this matter does not support the application of the "single spree" doctrine. Defendant pled guilty to three crimes occurring on three different dates spanning a period of two months, all of which were independent of each other, although involving the same participants and pursuant to the same undercover operation. These separate offenses each qualify as prior or subsequent crimes. Thus, A.H.'s conviction for the crime charged in Count Three constitutes a conviction for a "prior crime" which precludes expungement of her convictions on Counts Eight and Eleven, and her conviction for the crimes charged in Counts Eight and Eleven constitute convictions for "subsequent" crimes that preclude expungement of her conviction on Count Three.
Moreover, because A.H.'s criminal convictions under Counts Three, Eight and Eleven are ineligible for expungement, the charges that were dismissed pursuant to the plea agreement between A.H. and the State are also precluded from expungement. See N.J.S.A. 2C:52-14(c) ("A petition for expungement filed pursuant to this chapter shall be denied . . . in 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.").