N.J.S.A 2C: 52-2(a) permits the Superior Court to expunge convictions of certain classes of offenses under certain enumerated circumstances. As one example, the applicant seeking the remedy must have been “convicted of a crime,” but “…not convicted of any prior or subsequent crime.” The statute also bars from eligibility those who plead guilty in one proceeding to multiple offenses committed within a short period of time.
But what exactly does this last limitation mean in practice? Last week, the Supreme Court of New Jersey addressed and answered this question in In the Matter of the Expungement Petition of J.S. (A-84-13) and In the Matter of the Expungement of the Criminal Records of G.P.B, (A-2-14). So now while a quantum of doubt has been eliminated (and that is always a good thing), the statute is now more restrictive (and, for defense practitioners, this is decidedly not a good thing).
J.S., while a college student, was arrested twice in five days for selling marijuana to an undercover police officer. The sales occurred on June 16, 2001 and June 21, 2001, respectively and resulted in his plea to one fourth degree distribution charge and a third degree distribution charge.
J.S. served his sentence of probation without incident and sought the expungement remedy. At the trial level, his petition was granted, as the court found that his two offenses were a “single spree” and hence a single crime in reliance upon the holding of In re Fontana, 146 N.J. Super 264, 267 (App. Div. 1976).
Yet, the Appellate Division reversed, finding that the concept of a “single spree” was premised on an earlier version of the expungement statute and that the correct precedent was In re Ross, 400 N.J. Super 117, 123 (App. Div. 2008) in which the “spree” concept was rejected. The Appellate Division found that the two offenses by J.S. were “prior or subsequent to one another” and that expungement was hence not available. The Supreme Court granted a petition for certification.
G.P.B’s offenses were even closer in time that those of J.S., occurring on April 19th and 20th 1999 and all arising from a scheme designed to offer illegal gifts to local municipal officials in exchange for a public contract and an agreed upon outcome to a pending municipal resolution.
G.P.B. pled guilty to four third degree offenses, was incarcerated for thirty days, was fined, and was further tasked with 100 hours of community service. As the statute permitted, he moved for the expungement remedy 10 years after his conviction.
Initially, G.P.B’s application also met with success, as the trial court found that the four offenses were part of one conspiracy to influence government officials and were one crime within the meaning of N.J.S.A 2C:52-2(a). But the Appellate Division reversed here too (In re G.P.B., 436 N.J. Super. 48, 52 (App Div. 2014)), finding again that the “spree” concept of Fontana had no present day viability and that since the offenses were committed on two separate days, G.P.B was not entitled to relief. The Supreme Court granted certification here as well.
In last week’s opinion, the Supreme Court endorsed the Appellate Division’s reasoning, finding that the purpose of the expungement statute was to offer relief to one time-offenders who have committed no more than an isolated infraction in an otherwise blameless life.
To be sure, the language of the statute has been amended over time. At one point, the statute’s pertinent requirement was only that “no subsequent conviction” be entered against a petitioner. But, in 1979, this language was changed to the present formulation, requiring that an applicant not have“…been convicted of any prior or subsequent crime.” Critically, this amendment took place three years after the Fontana decision, and so by a 5-2 majority, the Court held that the plain language of the statute could not accommodate the relief sought by J.S. and G.P.B.
Justices Albin and LaVecchia dissented, citing the statute’s overall remedial purpose and arguing that, in light of an ambiguity, a more expansive reading of the law would be appropriate until the Legislature clarifies this issue.
It remains to be seen if any legislative action is forthcoming.