Expungement of prior crimes—– Crimes not committed in “one continuous uninterrupted time period can not be expunged” even hours apart!

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

In the Matter of the Expungement Petition of J.S. (A-84-13) (073376)
In the Matter of the Expungement of the Criminal Records of G.P.B. (A-2-14) (074541)

In these appeals, the Court determines whether N.J.S.A. 2C:52-2(a), which permits the expungement of a conviction for certain indictable offenses if the person “has been convicted of a crime . . . and . . . has not been convicted of any prior or subsequent crime,” bars expungement of the convictions of a defendant who pleads guilty in a single proceeding to multiple offenses that were committed within a short period of time.

The plain language of N.J.S.A. 2C:52-2(a) precludes expungement of convictions when the petitioner has been convicted of multiple crimes, even when those crimes occurred within a short span of time.

  1. The Legislature intended the expungement statute to provide relief to one-time offenders who have dissociated themselves with unlawful activity. As the law has changed over time, the Legislature has consistently strived to limit expungement to offenders who have committed no more than an isolated infraction in an otherwise law- abiding life. As originally enacted in 1931, and as amended in 1936, the statute permitted expungement when the offender had been convicted only once and “no subsequent conviction” had been entered against him or her. A later version of the statute with similar language was the subject of the Appellate Division’s analysis in In re Fontana, 146 N.J. Super. 264, 267 (App Div. 1976), wherein the panel imported from sentencing law the concept of a “one- night spree” in order to expunge the conviction of a defendant who had pled guilty to ten thefts committed over a nine-day period. Three years after Fontana, in 1979, the Legislature combined various expungement provisions into Chapter 52 of the new Code of Criminal Justice. At the same time, it amended the language identifying the requirements for expungement when by enacting N.J.S.A. 2C:52-2. Instead of the former requirement that “no subsequent conviction has been entered against” the petitioner, N.J.S.A. 2A:164-28 (repealed 1979), the Legislature limited expungement to offenders who have not “been convicted of any prior or subsequent crime,” N.J.S.A. 2C:52- 2(a). (pp. 12-17)
  2. Since the enactment of N.J.S.A. 2C:52-2(a), this Court has not applied the text to a case involving multiple offenses committed over a short period of time and adjudicated in a single conviction. The first published appellate opinion analyzing in detail the revised “prior or subsequent crime” language of N.J.S.A. 2C:52-2(a) was In re Ross, 400 N.J. Super. 117, 120-24 (App. Div. 2008), wherein the panel determined that the words “prior” and “subsequent” modify the term “crime,” not the term “conviction.” Consequently, the panel rejected the Fontana holding, concluding that two crimes committed on separate occasions are precluded from expungement regardless of whether they carried a single date of conviction. Two years after the decision in Ross, the Legislature amended the expungement law to broaden opportunities for expungement in limited situations, such as when in the public interest or for certain third- and fourth-degree drug offenses. At that time, the Legislature neither altered the “prior or subsequent crime” language of N.J.S.A. 2C:52-2(a), nor abrogated the holding in Ross. (pp. 18-21)
  3. The Court reviews the trial courts’ applications of N.J.S.A. 2C:52-2(a) to the expungement petitions of J.S. and G.P.B. de novo. In effectuating the legislative intent of the statute, the Court first looks to its plain language, applying the words’ ordinary meanings and construing them within the context of the surrounding provisions in a way that would not produce an absurd result. The plain language of the statute authorizes expungement of “a crime,” not one or more crimes closely related in circumstances or time, while excluding those petitioners who have been “convicted of any prior or subsequent crime.” The adjectives “prior or subsequent” modify “crime,” not “conviction.” Moreover, the 1979 change in the statutory language from “subsequent conviction” to “any prior or subsequent crime” implies a purposeful alteration in the substance of the law. Thus, although N.J.S.A. 2C:52-2(a) permits expungement of a single conviction arising from multiple offenses if those offenses occurred as part of a single, uninterrupted criminal event, the provision’s plain language shows that the Legislature clearly intended to bar expungement when the offender has committed a second crime at an earlier or later time, whether or not those crimes are resolved in the same judgment of conviction. (pp. 21-29)
  4. The plain language of N.J.S.A. 2C:52-2(a) does not permit the expungement of the convictions of either petitioner in these appeals. J.S. committed two offenses five days apart. Although similar in nature, they were not committed as part of a single, uninterrupted criminal event. Instead, each was a discrete “crime” within the meaning of N.J.S.A. 2C:52-2, and the second offense was “subsequent” to the first, thereby rendering J.S. ineligible for expungement. G.P.B. committed his offenses within a short time frame, as well as all in furtherance of the same conspiracy. However, each offense consisted of a separate criminal event. Consequently, G.P.B. also is ineligible for expungement since his crimes, although related, were “prior” and “subsequent” to each other. (pp. 29-30)
  5. Although the dissent invokes policy arguments in support of broader access to the remedy of expungement, the majority notes that the Court’s role is to construe the statute, not to pass judgment on the wisdom of the law or render an opinion as to its representation of social policy. To that end, should the Legislature determine that expungement should be available to offenders such as petitioners, convicted of multiple crimes that occurred in close succession but not concurrently, it may amend N.J.S.A. 2C:52-2 to effect that intent. (pp. 30-31)

Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

Leave a Comment