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In re Application for Expungement of Criminal Records of C.A.D.

Superior Court of New Jersey, Appellate Division

July 18, 2013

IN THE MATTER OF THE APPLICATION FOR EXPUNGEMENT OF THE CRIMINAL RECORDS OF C.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 27, 2013

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. M-484-11.

Daniel B. Kelley argued the cause for appellant C.A.D.

Nancy A. Hulett, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Brian D. Gillet, Assistant Prosecutor, on the brief; Matthew P. Tallia, of counsel and on the brief).

Before Judges Sapp-Peterson and Nugent.

PER CURIAM

Petitioner C.A.D. appeals from a March 22, 2012 Law Division order that denied his petition for expungement of his two convictions for fourth-degree maintaining a nuisance, N.J.S.A. 2C:33-12. The expungement statute authorizes the expungement of a criminal conviction of a person who "has been convicted of a crime under the laws of this State and who has not been convicted of any prior or subsequent crime[.]" N.J.S.A. 2C:52-2a. The judge who denied the expungement petition concluded that because petitioner had been convicted of two separate offenses, the statutory language precluded the expungement of those offenses. Having considered petitioner's arguments in light of the record, we affirm.

According to a transcript of sworn statements submitted by law enforcement authorities to obtain a search warrant, and to a pre-trial intervention form, [1] petitioner owned and operated two massage parlors, one in Bergen County and one in Middlesex County, that were fronts for prostitution. When police raided the Bergen County parlor, they interviewed six occupants, five of whom were employees of petitioner. The employees admitted that they routinely performed sexual acts on patrons in exchange for a fee. At least two of the employees, who also worked at the Middlesex County massage parlor, told police that petitioner had instructed them to provide customers with certain sexual favors. One claimed that the previous night petitioner had $25, 000 in cash. The employees were arrested.

The police arrested petitioner on May 18, 2002. On August 14, 2002, a Middlesex County grand jury charged petitioner in a five-count indictment with third-degree conspiracy to commit the crimes of promoting prostitution and maintaining a nuisance, a house of prostitution, N.J.S.A. 2C:5-2, 2C:34-1 and 2C:33-12c (count one); third-degree promoting prostitution, N.J.S.A. 2C:34-1b(2) (count two); fourth-degree maintaining a nuisance, N.J.S.A. 2C:33-12c (count three); third-degree wiretap law violations, N.J.S.A. 2A:156A-3 (count four); and fourth-degree peering, N.J.S.A. 2C:18-3c (count five).

Two months later, on October 18, 2002, a Bergen County grand jury charged petitioner in a four-count indictment with third-degree wiretap law violations, N.J.S.A. 2A:156A-3 (first count); third-degree financial facilitation of criminal activity, N.J.S.A. 2C:21-25c (second count); fourth-degree maintaining a nuisance, a house of prostitution, N.J.S.A. 2C:33-12c (third count); and third-degree promoting prostitution, N.J.S.A. 2C:34-1b (fourth count).

Petitioner applied for pre-trial intervention in Middlesex County. The probation officer who authored the pre-trial intervention report recommended that petitioner's application be rejected because he had owned and operated a criminal business over an extended period of time, and that his offenses were planned and organized.

Petitioner pled guilty to the third count of the Middlesex County indictment on January 6, 2003; and to the third count of the Bergen County indictment, on February 10, 2003. He was sentenced to five years' probation on the third count of the first indictment on March 24, 2003; and to five years' probation on the third count of the second indictment on May 6, 2003.

Petitioner served his probationary sentences without incident and has since been arrested for no other crimes. On August 15, 2011, he filed his expungement petition in Middlesex County Superior Court. In the petition, he sought to expunge both the Bergen and Middlesex County convictions "pursuant to the 'one night spree' exception[.]" Petitioner argued that "a series of unlawful actions committed in close temporal proximity to one another and the concomitant convictions therefore constitute a single event for expungement purposes." The judge who heard the petition rejected petitioner's "crime spree" argument, finding instead that petitioner had ...


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