IN THE MATTER OF THE EXPUNGEMENT OF THE CRIMINAL RECORDS OF E.C.
December 12, 2017
appeal from Superior Court of New Jersey, Law Division, Union
County, Docket No. 02002649.
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).
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
Judges Reisner, Gilson, and Mayer. 
appeals from a June 17, 2016 order denying her petition to
expunge her conviction. 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
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.Pursuant to the plea agreement, the court
also dismissed charges that had been filed against E.C. after
an arrest on June 14, 2002.
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
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),  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
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.
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. 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 ...