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In re Expungement Petition of Hannah

Superior Court of New Jersey, Appellate Division

December 17, 2013

IN THE MATTER OF THE EXPUNGEMENT PETITION OF JOSEPH S. HANNAH.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 3, 2013

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 96-10-1020.

Justin Lee Klein argued the cause for appellant Joseph Hannah (Hobbie, Corrigan & Bertucio, P.C., attorneys; Edward C. Bertucio, of counsel; Danielle M. Diodato, on the brief).

Andrew M. Megill, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Joseph D. Coronato, Ocean County Prosecutor, attorney; Mr. Megill, on the brief).

Before Judges Messano and Hayden.

PER CURIAM

Joseph Hannah appeals from the order denying his petition for expungement. The judge determined that, pursuant to N.J.S.A. 2C:52-2a, Hannah was "ineligible . . . because [he] ha[d] more than one indictable conviction" as a result of pleading guilty to "multiple charges, " which, although "alleged in a single indictment, " involved criminal acts that "did not occur concurrently." We have considered the arguments raised in light of the record and applicable legal standards. We affirm.

Appellant was a practicing dentist when the Ocean County grand jury returned Indictment No. 96-10-1020, charging him in twelve counts with various violations of the Criminal Code. On April 28, 1997, he pled guilty to three counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b, and a single count of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. Each offense was committed against a different victim and at different times, the earliest occurring in July and the latest in November 1995.[1] In accordance with the plea bargain, on June 30, 1997, the judge imposed a non-custodial probationary sentence.

On September 21, 2012, appellant filed a verified petition seeking expungement of his three convictions of sexual contact.[2]The petition set forth what has been, without dispute, appellant's exemplary conduct since he was convicted, as well as the professional hardships he allegedly continues to endure as a result of those convictions.[3]

In an oral opinion read on the record, Judge Rochelle Gizinski denied the petition. Quoting In re P.A.F. , 176 N.J. 218, 223 (2003), the judge noted that the expungement statute "favors expungement of the criminal records of a first-time offender[, ]" and "[e]xceptions . . . are to be construed narrowly." Judge Gizinski stated, "The crux of this case concerns whether petitioner's criminal acts, which took place over approximately a six and a half month period qualify [him] as . . . 'a one-time offender' because he was charged in a single indictment."

The judge rejected appellant's argument that In re Fontana , 146 N.J.Super. 264 (App. Div. 1974), applied, noting that Fontana was decided "before the expungement statute was amended in 1979."[4] She observed that N.J.S.A. 2C:52-2a "now only permits an expungement to be granted after [ten] years to a person who . . . 'has not been convicted of any prior or subsequent crime.'" Judge Gizinski further stated that our decision in In re Ross, 400 N.J.Super. 117 (App. Div. 2008), "analyzed the pre[-] and post[-]amendment language" under facts that were "analogous to the present matter." Judge Gizinski rejected appellant's argument that Ross was distinguishable because the convictions in that case arose from two separate indictments.

The judge also cited our recent decision, In re R.Z. , 429 N.J.Super. 295 (App. Div. 2013). In that case, which involved convictions for two crimes contained in a single indictment, we said "a petitioner bears the burden to show his or her crimes were committed concurrently, that is, that one crime was not committed 'prior or ...


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