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In re Expungement of Criminal Records of E.C.

Superior Court of New Jersey, Appellate Division

March 19, 2018

IN THE MATTER OF THE EXPUNGEMENT OF THE CRIMINAL RECORDS OF E.C.

          Argued December 12, 2017

         On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. 02002649.

          Anne M. Collart argued the cause for appellant E.C. (Gibbons, PC, attorneys; Timothy J. Petty, Jake F. Goodman, Laura Saborio Dunn, and Anne M. Collart on the briefs).

          Milton S. Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent State of New Jersey (Thomas K. Isenhour, Acting Union County Prosecutor, attorney; Milton S. Leibowitz, of counsel and on the brief).

          Before Judges Reisner, Gilson, and Mayer. [1]

          OPINION

          REISNER, P.J.A.D.

         E.C. appeals from a June 17, 2016 order denying her petition to expunge her conviction.[2] We hold that an individual who has been discharged from probation without improvement, and who has subsequently paid all outstanding fees and fines, is not barred from applying for expungement pursuant to N.J.S.A. 2C:52-2(a)(2). However, the court may consider her performance while on probation as one factor in deciding whether to grant the petition. The trial court erred in holding that E.C. was barred from applying for expungement because she had been discharged from probation without improvement. We reverse the order on appeal and remand this matter to the trial court for further consideration on an expedited basis.

         I

         On May 31, 2002, E.C. was arrested on drug charges that were later resolved through a plea bargain. On December 13, 2002, she pled guilty to one count of third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1), and was sentenced to three years of probation, conditioned on serving six days in jail and paying $1205 in fines and fees.[3]Pursuant to the plea agreement, the court also dismissed charges that had been filed against E.C. after an arrest on June 14, 2002.

         Almost three years later, on November 18, 2005, E.C. pled guilty to violating probation, due to her failure to report to her probation officer on several occasions in 2005, failure to advise the probation officer that she had moved, and failure to pay the fines. She was discharged from probation "without improvement, " and all fines remained in effect. However, by February 8, 2010, she had paid off all the fines. In support of her expungement petition, E.C. submitted an October 29, 2013 letter issued by the Essex Vicinage Probation Services, advising: "All fines have been paid in full. On 2/08/2010 this case was discharged as a completed term."

         On November 9, 2015, E.C. filed a petition pursuant to the "early pathway" section of the expungement statute, N.J.S.A. 2C:52-2(a)(2), [4] seeking to expunge the 2002 arrest and conviction, and to expunge the charges that had been dismissed as part of the 2002 plea bargain. She also sought to expunge the June 14, 2002 arrest on charges that were later dismissed, and a 2012 arrest that the State admitted was an error. Other than motor vehicle violations, and the mistaken 2012 arrest, she had no brushes with the law since 2002.

         E.C.'s petition explained that she was nineteen years old at the time of her May 2002 arrest. As a result of the 2002 conviction, she lost her public housing and was forced to drop out of college because she lost her federal aid. Her petition, which was supported by extensive documentation, also described her years-long efforts to complete her education in the health care field, while caring for her two children. By 2015, she had graduated from a business college with a 4.0 GPA and hoped to become a certified phlebotomist and medical assistant. However, her 2002 conviction hindered her ability to obtain the certification and obtain a full-time position in a hospital. Letters of support attached to her petition attested to E.C.'s good character. In summary, E.C. appeared well qualified for expungement.

         However, other than agreeing to expungement of the mistaken 2012 arrest, the Union County Prosecutor's Office opposed the application. The prosecutor argued that E.C. had not "satisfactorily completed" her term of probation, within the meaning of the expungement statute, N.J.S.A. 2C:52-2, because she had been discharged from probation without improvement.[5] The trial court agreed with that argument. Based on the trial court's construction of the statute, E.C. would be permanently unable to apply for and obtain expungement of her criminal record, due to her imperfect performance while on probation. See N.J.S.A. 2C:52-2(a); N.J.S.A. 2C:52-2(a)(2). By ...


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