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In re Expungement of Arrest/Charge Records of T.B.

Superior Court of New Jersey, Appellate Division

August 1, 2017

IN THE MATTER OF THE EXPUNGEMENT OF THE ARREST/ CHARGE RECORDS OF T.B. IN THE MATTER OF THE EXPUNGEMENT OF THE ARREST/ CHARGE RECORDS OF J.N.-T. IN THE MATTER OF THE EXPUNGEMENT OF THE ARREST/ CHARGE RECORDS OF R.C.

          Argued June 6, 2017

         On appeal from the Superior Court of New Jersey, Law Division, Cape May County.

          Jacqueline M. Quick, Deputy Attorney General, argued the cause for appellant State of New Jersey (Christopher S. Porrino, Attorney General, attorney; Sarah E. Miller, Deputy Attorney General, of counsel and on the briefs).

          Stephen P. Hunter, Assistant Deputy Public Defender, argued the cause for respondents T.B., J.N.-T. and R.C. (Joseph E. Krakora, Public Defender, attorney; Mr. Hunter, of counsel and on the briefs).

          Before Judges Ostrer, Leone and Vernoia.

          OPINION

          OSTRER, J.A.D.

         In these consolidated appeals, we must decide whether Drug Court graduates seeking expungement of their criminal records pursuant to N.J.S.A. 2C:35-14(m) - the "Drug Court expungement statute" - must make a "public interest" showing as N.J.S.A. 2C:52-2(c)(3) requires for the expungement of certain third- and fourth-degree drug offenses. Having considered the plain language of the Drug Court expungement statute, and its legislative history, we conclude that N.J.S.A. 2C:35-14(m)(2) clearly imports the public interest requirement under N.J.S.A. 2C:52-2(c)(3). We therefore vacate orders expunging the criminal records of T.B., J.N.-T. and R.C., and remand for appropriate application of the public interest test.

         I.

         As these appeals require us to consider the interplay between N.J.S.A. 2C:35-14(m) and N.J.S.A. 2C:52-2(c)(3), we review those key statutory provisions before considering the parties' arguments. Effective April 18, 2016, L. 2015, c. 261, § 10, the Drug Court expungement statute generally provides for the expungement of an offender's entire prior criminal record - "all records and information relating to all prior arrests, detentions, convictions, and proceedings for any offense enumerated in Title 2C" - after successfully completing, or graduating from, Drug Court probation without any intervening convictions. L. 2015, c. 261, § 1, codified as N.J.S.A. 2C:35-14(m)(1). The law applies to persons sentenced pursuant to N.J.S.A. 2C:35-14.2 and N.J.S.A. 2C:45-1. Ibid.

         The statute initially speaks permissively, stating, "The Superior Court may order the expungement . . . upon successful discharge from a term of special probation" if the person satisfies two conditions: first, "the person satisfactorily completed a substance abuse treatment program as ordered, " and second, the person "was not convicted of any crime, or adjudged a disorderly person or petty disorderly person, during the term of special probation." Ibid. (emphasis added). Yet, the statute then speaks mandatorily: "The court shall grant the relief requested, " unless the court finds one of two grounds for denial. Ibid, (emphasis added). The first ground arises if "the need for the availability of the records outweighs the desirability of having the person freed from any disabilities associated with their availability[.]"[1] Ibid. The second ground exists if "the person is otherwise ineligible for expungement pursuant to paragraph (2)" of N.J.S.A. 2C:35-14(m). Ibid.

         Paragraph 2 in turn provides, "[a] person shall not be eligible for [a Drug Court] expungement . . . if the [offender's] records include a conviction for any offense barred from expungement pursuant to subsection b. or c. of N.J.S.[A.] 2C:52-2." N.J.S.A. 2C:35-14(m)(2). Subsection (b) identifies several crimes that absolutely bar a person from regular expungement under N.J.S.A. 2C:52-2 and, therefore, from any Drug Court expungement under N.J.S.A. 2C:35-14(m). N.J.S.A. 2C:52-2(b).These include, for example, kidnapping, murder, manslaughter, and various sexual offenses. Ibid.

         The focus of this appeal is subsection (c), which addresses crimes involving the sale, distribution, or possession with intent to sell a controlled dangerous substance (CDS). N.J.S.A. 2C:52-2(c). Some crimes are absolutely barred from expungement if they are first- and second-degree offenses, while crimes involving roughly fourth-degree quantities of marijuana or hashish are not barred at all. Compare N.J.S.A. 2C:35-5(b)(12), with N.J.S.A. 2C:52-2(c)(1) and (2). However, some crimes - third- and other fourth-degree offenses - are barred unless the court finds expungement serves the public interest. N.J.S.A. 2C:52-2(c)(3). Subsection (c) states:

In the case of conviction for the sale or distribution of a controlled dangerous substance or possession thereof with intent to sell, expungement shall be denied except where the crimes involve:
(1)Marijuana, where the total quantity sold, distributed or possessed with intent to sell was 25 grams or less;
(2)Hashish, where the total quantity sold, distributed or possessed with intent to sell was five grams or less; or
(3)Any controlled dangerous substance provided that the conviction is of the third or fourth degree, where the court finds that expungement is consistent with the public interest, giving due consideration to the nature of the offense and the petitioner's character and conduct since conviction.
[ N.J.S.A. 2C:52-2(c).[2]

         The Drug Court expungement statute also requires the prosecutor "to notify the court of any disqualifying convictions or any other factors related to public safety" that the court should consider. N.J.S.A. 2C:35-14(m)(2). If a person who secures a Drug Court expungement thereafter commits a crime, "the full record of arrests and convictions may be restored to public access and no future expungement shall be granted to such person." N.J.S.A. 2C:35-14(m)(4).

         A person who graduates from Drug Court after the effective date need not file a formal petition for expungement as required by N.J.S.A. 2C:52-7 to -14.See N.J.S.A. 2C:35-14(m)(1) (stating that the "provisions of N.J.S.[A. ] 2C:52-7 through N.J.S.[A.] 2C:52-14 shall not apply"). It is sufficient simply to convey the request to the Drug Court judge prior to graduation; submission of a form of order suffices. See Administrative Directive #02-16 (May 23, 2016), available athttps://www.judiciary.state.nj.us/notices/2016/n160526a.pdf. However, a person who graduated before the effective date of L. 2015, c. 261, and seeks the relief provided by the statute must file "a duly verified petition as provided in N.J.S.[A.] 2C:52-7 for each crime or offense sought to be expunged." N.J.S.A. 2C:35-14(m)(5). This petition "shall proceed ...


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