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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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 entered, setting forth all the facts in the matter and praying for the relief provided in this section.
We interpreted this provision as permitting expungement of the petitioner's convictions:
The crimes which form the basis of the convictions all involved the same participants and were committed within a comparatively short time. The judgments of conviction on the pleas of guilty were all entered on the same day. The criminal conduct can be viewed as akin to a one night spree which has generally received special consideration in sentencing, . . . and the convictions as one conviction within the intent and meaning of the statute.
[Fontana, supra, 146 N.J.Super. at 267 (internal quotation marks and citation omitted).]
In 1979, the statute was repealed and replaced by a new provision, contained in Title 2C, which now provides 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. . . .
Ross, supra, 400 N.J.Super. at 118-24 involved an expungement petitioner convicted of bribery and false swearing. The two offenses took place months apart and were part of six indictments returned against the petitioner. The petitioner argued that the date the two crimes were committed was irrelevant for purposes of determining whether his bribery conviction should be expunged. We disagreed, stating:
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.]
"Because statutory interpretation is an issue of law, we owe no deference to the trial judge's interpretation, but rather review the issue de novo. . . . Our overriding goal in interpreting a statute is to 'determine as best we can the intent of the Legislature, and to give effect to that intent.'" State in Interest of KO 424 N.J. Super 555 559-60 (App Div 2012) (internal quotation and citation omitted)
We discern no basis to depart from our reasoning in Ross As we observed there "when the Legislature enacted NJSA 2C:52—2 it deliberately chose to alter the more expansive view of expungement that had existed under NJSA 2A:164—28" Ross supra 400 N.J. at 123 Nor are we persuaded that the fact that petitioner sold drugs to the same undercover officer within a five-day period requires a different outcome To petitioner the undercover officer was a drug customer with whom any drug dealer would want to engage in future transactions as occurred here five days after the first transaction thereby negating the notion that petitioner's conduct represented a single crime spree
Reversed and vacated expungement order of July 19 2012 The Prosecutor is directed to promptly send a copy of this opinion to all officers and agencies listed in the expungement order