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.
October 10, 2018
certification to the Superior Court, Appellate Division whose
opinion is reported at 451 N.J.Super. 391 (App. Div. 2017).
Stephen P. Hunter, Assistant Deputy Public Defender, argued
the cause for appellants T.B., J.N.-T., and R.C. (Joseph E.
Krakora, Public Defender, attorney; Stephen P. Hunter, of
counsel and on the briefs).
Luciano, Deputy Attorney General, argued the cause for
respondent, the State of New Jersey (Gurbir S. Grewal,
Attorney General, attorney; Sarah Luciano and Emily R.
Anderson, Deputy Attorneys General, of counsel and on the
Borden argued the cause for amicus curiae American Civil
Liberties Union of New Jersey (American Civil Liberties Union
of New Jersey Foundation, attorneys; Tess Borden, Alexander
Shalom, Edward Barocas, and Jeanne LoCicero, on the brief).
RABNER, C.J., writing for the Court.
court is designed to rid participants of drug dependency,
help them develop skills and get job experience, and
encourage them to continue their education. Statistics
demonstrate the program's efficacy in empowering
participants to lead productive lives. In these consolidated
appeals, the Court considers whether drug court graduates who
have a third- or fourth-degree conviction for a drug sale
offense must satisfy the public-interest standard required by
N.J.S.A. 2C:52-2(c)(3) when they seek expungement under the
2016 drug court expungement statute, N.J.S.A. 2C:35-14(m),
and, if so, how the standard should be applied.
three appeals involve similar facts. T.B., J.N.-T., and R.C.
had criminal records. All three pled guilty to third-degree
offenses, entered the drug court program, and successfully
graduated. All applied to expunge their entire record under
the new drug court expungement statute, N.J.S.A. 2C:35-14(m).
The trial court granted all three applications.
Appellate Division vacated the expungement orders and
remanded, concluding that the new statute "expressly
imports" the public-interest standard. 451 N.J.Super.
391, 400-01, 408 (App. Div. 2017). The panel added that
"Drug Court graduates bear the burden to show they
satisfy the public interest test" and must also present
transcripts of hearings and copies of presentence reports for
all third- or fourth-degree drug sale offenses they seek to
expunge. Id. at 405-06 (citing In re
Kollman, 210 N.J. 557, 572-73, 577 (2012)). Because the
trial court did not conduct its public-interest analysis in
accordance with Kollman, the panel vacated the
expungement orders and remanded for reconsideration.
Id. at 405-08.
Court granted the applicants' petitions for
certification, 231 N.J. 400 (2017); 231 N.J. 409 (2017); 231
N.J. 410 (2017), and stayed the parts of the appellate
judgment that vacated the expungement orders, 231 N.J. 411
(2017); 231 N.J. 412 (2017).
The plain language of the 2016 drug court expungement statute
requires judges to determine whether expungement would be
consistent with the public interest. N.J.S.A. 2C:35-14(m)(2);
id. § 52-2(c)(3). Successful graduates who have
committed certain offenses and apply for expungement are
entitled to a rebuttable presumption that expungement is
consistent with the public interest.
Expungement offers a second chance to rehabilitated offenders
who have made a commitment to lead law-abiding lives. The
relevant statutes have evolved over time and have steadily
expanded opportunities for expungement. In 2010, the
Legislature provided for expungement after five years if the
applicant has not been convicted of a crime or an offense
since the conviction "and the court finds . . . that
expungement is in the public interest, giving due
consideration to the nature of the offense, and the
applicant's character and conduct since conviction."
Kollman, 210 N.J. at 570-71 (quoting N.J.S.A.
2C:52-2(a)(2) (2010)). Some crimes are not eligible for
expungement. Section 2(b) of the general expungement statute
lists categories of serious offenses that cannot be expunged.
Section 2(c), as enacted in 1979, made certain drug crimes
ineligible for expungement except for small quantities of
marijuana and hashish. In 2010, the Legislature added a third
exception that allows for the expungement of drug sale
offenses when "the crimes involve . . . [a]ny 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." N.J.S.A. 2C:52-2(c)(3) (emphasis added).
To make the finding under either section, courts are to give
"due consideration to the nature of the offense"
and to "the [individual's] character and conduct
since conviction." N.J.S.A. 2C:52-2(a)(2), -2(c)(3).
Section 2(c)(3) lies at the center of this appeal. (pp. 4-7)
In re LoBasso, the Appellate Division outlined
various factors to consider in deciding whether expungement
is in the public interest under section 2(a)(2). 423
N.J.Super. 475, 491-95 (App. Div. 2012). In Kollman,
the Court adopted and applied the analysis to section
2(c)(3), 210 N.J. at 574-77, placing on the applicant the
burden of proof to demonstrate that expungement was
consistent with the public interest, id. at 573, and
directing applicants to provide transcripts and presentence
reports as part of their petition, id. at 577. (pp.
Legislature passed a broad-ranging law in 2016, commonly
known as the drug court expungement statute, which allows
drug court graduates to apply to expunge their
entire criminal record but carves out a number of
exceptions: expungement is not available when the court finds
that (1) "the need for the availability of the records
outweighs the desirability of having the person freed from
any disabilities associated with their availability," or
(2) "the person is otherwise ineligible for expungement
pursuant to paragraph (2) of this subsection." N.J.S.A.
2C:35-14(m)(1). Paragraph 2, in turn, limits the availability
of expungement for drug court graduates as follows:
"A person shall not be eligible for expungement
under paragraph (1) of this subsection if the records include
a conviction for any offense barred from expungement
pursuant to subsection b. or c. of N.J.S.A. 2C:52-2.
Id. § 35-14(m)(2) (emphases added). (pp. 8-10)
Under section 14(m)(2), offenses like homicide, aggravated
sexual assault, robbery, and the other crimes listed in
N.J.S.A. 2C:52-2(b) are barred. The same is true for first-
and second-degree drug sale offenses that are automatically
barred under N.J.S.A. 2C:52-2(c). Yet third- and
fourth-degree offenses for which expungement is not
consistent with the public interest are also barred under
section 52-2(c). Had the Legislature intended to exclude
those cases from the limiting language in section 14(m)(2),
it could have said so. But it did not. The plain language of
section 14(m)(2) thus includes cases under N.J.S.A.
2C:52-2(c)(3) and calls for a public-interest assessment
before third- or fourth-degree drug sale offenses can be
expunged. (pp. 16-17)
considering how the public-interest analysis should be
carried out under the new drug court expungement statute, the
Court again starts with the statute's text. First, the
drug court expungement statute allows judges to order the
expungement of a person's entire criminal
record. Second, the new law dispenses with the formal
application process imposed by N.J.S.A. 2C:52-7 through -14.
Third, the law directs that judges "shall grant"
expungement unless (1) the need for the availability of the
records outweighs the benefits of expungement to the
applicant, or (2) the person is otherwise ineligible under
section 14(m)(2). N.J.S.A. 2C:35-14(m)(1). In other words,
the new law starts with a presumption that expungement shall
be granted, subject to certain exceptions. Fourth, the new
law places certain notification obligations on the State.
Id. § 35-14(m)(2). Read as a whole, the above
features reveal how the new law tends to favor expungement
for successful graduates. (pp. 17-19)
determine whether expungement is consistent with the public
interest, courts are to consider "the nature of the
offense and the petitioner's character and conduct since
conviction." N.J.S.A. 2C:52-2(c)(3). Kollman,
which drew heavily on LoBasso, addressed the kind of
information those factors encompass and placed the burden on
the applicant to show that expungement under the general
expungement statute is consistent with the public interest.
210 N.J. at 573-76. Drug court, however, focuses directly on
many of the concerns described in Kollman as part of
a rigorous program of supervision. For a period of up to five
years, a specialized team of judges, treatment providers,
probation officers, substance abuse evaluators, public
defenders, prosecutors, and court staff closely track each
defendant's behavior. Throughout that time, each
defendant's achievements are monitored with care, and
missteps often result in court appearances. Judges and other
members of the drug court team thus become quite familiar
with each participant and have a basis to assess each
defendant's "character and conduct since
conviction." N.J.S.A. 2C:52-2(c)(3). In light of the
rigorous monitoring that is the hallmark of drug court, as
well as the new law's overall policy in favor of
expungement for successful graduates, participants are
entitled to a rebuttable presumption that expungement is
consistent with the public interest. As an integral part of
the drug court team, prosecutors may draw on their knowledge
of an applicant's character and conduct after conviction,
as well as other information, to try to rebut the
presumption. For the same reasons that warrant a rebuttable
presumption in those cases, drug court graduates are not
required to provide copies of all relevant transcripts and
reports when they ask the drug court judge to expunge their
records. T.B.'s, J.N.-T.'s, and R.C.'s
applications should proceed before the trial court consistent
with the above principles. (pp. 20-24)
and REMANDED to the trial court.
JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in CHIEF JUSTICE RABNER's
the strong support of all three branches of government, the
court system has operated a drug court program for more than
two decades. Defendants who participate in the program
undergo a period of intensive supervision for up to five
years. During that time, they are monitored closely by a team
of treatment providers, probation officers, substance abuse
evaluators, public defenders, prosecutors, and court staff. A
trial judge heads the team.
court is designed to rid participants of drug dependency,
help them develop skills and get job experience, encourage
them to continue their education, and equip them to advance
in other ways. At its core, the program tries to keep
participants drug free and empower them to lead productive
to the Administrative Office of the Courts, more than 5400
individuals have successfully completed drug court since
2002, when the program went operational statewide.
Administrative Office of the Courts, New Jersey Adult
Drug Court Program: New Jersey Statistical Highlights
(Aug. 6, 2018),
Nine out of ten participants are employed when they graduate.
Ibid. Two out of three have a driver's license
at graduation. Ibid. More than half have medical
benefits. Ibid. And participants must have clean
drug tests for one continuous year to be able to graduate.
Administrative Office of the Courts, Manual for Operation
of Adult Drug Courts in New Jersey (Drug Court
Manual) 42 (July 2002),
2016, the Legislature expanded opportunities for expungement
for successful drug court graduates. They may now apply for
the expungement of "all records and information relating
to all prior arrests, detentions, convictions, and
proceedings." N.J.S.A. 2C:35-14(m)(1). The law does not
allow certain serious offenses to be expunged, however.
See id. §§ 35-14(m)(2); 52-2(b), (c). In
these consolidated appeals, we consider how the expungement
statute for drug court graduates applies to individuals
convicted of certain third- or fourth-degree offenses related
to the sale and distribution of drugs.
that the plain language of the new law requires judges to
determine whether expungement would be consistent with the
public interest. See id. §§ 35-14(m)(2);
52-2(c)(3). In light of the statute's overall approach,
which generally favors expungement in a number of ways, and
the rigorous nature of the drug court program, we conclude
that successful graduates who have committed certain offenses
and apply for expungement are entitled to a rebuttable
presumption that expungement is consistent with the public
interest. Prosecutors, who play an integral role in drug
court, become familiar with graduates from years of intensive
supervision in the program. Prosecutors can draw on their
knowledge of an applicant's character and conduct since
conviction, as well as other information, to try to rebut the
above approach is consistent with our understanding of the
Legislature's intent. It also simplifies the expungement
process for drug court graduates to allow them to try to
reintegrate into society without the collateral consequences
of a criminal record.
the Appellate Division applied a different standard, we
reverse its judgment and remand the three cases to the trial
court for further proceedings.
better understand the parties' arguments and the rulings
of the trial court and Appellate Division, we begin with an
overview of relevant ...