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In re Expungement Petition of J.S.

Superior Court of New Jersey, Appellate Division

August 22, 2013

IN THE MATTER OF THE EXPUNGEMENT PETITION OF J.S.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 17, 2013

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Accusation No. 01-04-0682.

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for appellant State of New Jersey (Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Rudnick, Addonizio, Pappa & Casazza, attorneys for respondent J.S. (Michael J. Pappa, of counsel and on the brief).

Before Judges Axelrad and Sapp-Peterson.

PER CURIAM

The State appeals the trial court order granting defendant J.S.'s motion to expunge two convictions for drug-related offenses. The trial court, although recognizing our holding in In re Ross, 400 N.J.Super. 117 (App. Div. 2008), interpreting N.J.S.A. 2C:52-2(a) as precluding expungement where there has been a conviction for a prior or subsequent crime, treated the two offenses as a "one-night spree, " thereby concluding it was in the public interest to grant the expungement under the "early pathway" amendment to the expungement statute. We now reverse.

The facts underlying the two convictions occurred five days apart and arose out of an undercover operation. On June 16, 2000, defendant sold less than one ounce of marijuana to undercover officer, Detective Scott Mura of the Keyport Police Department. Five days later, defendant once again sold marijuana to the same undercover officer. In a single, nine-count indictment, defendant was charged with possession, possession with the intent to distribute, and distribution of controlled dangerous substances, in connection with the two incidents. As part of a negotiated plea agreement, defendant agreed to plead guilty to fourth-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5b(12), committed on June 16, 2000, and also agreed to plead guilty to third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-5b(11), which he committed on June 21, 2000. In exchange, the State agreed to dismiss the remaining charges and to recommend a probationary sentence. The court sentenced defendant in accordance with the plea agreement.

Petitioner filed a verified petition for expungement in February 2012. The State opposed the motion, arguing that the plain language of the expungement statute, N.J.S.A. 2C:52-2a, as interpreted by our court, precluded expungement because the two offenses had been committed on separate occasions. The trial court, although aware of our holding in Ross, supra, was persuaded that our earlier decision in In re Fontana, 146 N.J.Super. 264 (App. Div. 1976), controlled because in both instances, petitioner sold the drugs to the same undercover detective and the "crimes were committed less than one week apart in the same town." The trial court therefore reasoned that petitioner's actions were akin to the one-night spree doctrine set forth in Fontana.

On appeal, the State urges that the order granting the expungement was premised upon the trial court's misinterpretation of the expungement statute and case law. We agree.

Our decision in Fontana, upon which the trial court relied in concluding the two crimes represented a single, one-night spree, was based upon pre-Title 2C statutory language contained in N.J.S.A. 2A:164-28, which provided:

In all cases wherein a criminal conviction has been entered against any person whereon sentence was suspended, or a fine imposed of not more than $1, 000 and no subsequent conviction has been entered against such person, it shall be lawful after the lapse of ten years from the date of such conviction for the person so convicted to present a duly verified petition to the Court, wherein such conviction was ...

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