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.
June 6, 2017
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).
Judges Ostrer, Leone and Vernoia.
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.
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.
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[.]" 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.
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.
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
(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
[ N.J.S.A. 2C:52-2(c).
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).
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
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 ...