Case Law of NJ Expungements

(Cite as: 2013 WL 309483 (N.J.Super.A.D.))

Superior Court of New Jersey,
Appellate Division.

In re Application of J.C. for Expungement of Records.

Argued Nov. 15, 2012.
Decided Jan. 28, 2013.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Somerset County, Docket No. 12-99.

Allan Marain argued the cause for appellant J.C. (Law Offices of Allan Marain, attorneys; Mr. Marain, on the brief).

William A. Guhl, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Nicole McGrath, Assistant Prosecutor, on the brief).

Before Judges GRALL and SIMONELLI.


Appellant J.C. appeals from that part of the April 5, 2012 Law Division order, which denied his petition for expungement of records pertaining to an arrest on June 1, 1993 (the June 1993 arrest). On appeal, appellant argues that the trial judge erred in denying expungement of the June 1993 arrest based on appellant's failure to comply with N.J.S. 2C:52-7f, which requires “[t]he court's disposition of the matter and the punishment imposed, if any.” We reverse the denial of expungement of the June 1993 arrest, exercise our original jurisdiction to grant expungement of that arrest and remand for entry of an amended order.FN1 Accardi v. Accardi, 369 N.J.Super. 75, 91-92 (App.Div.2004); R. 2:10-5.

FN1. Although the State initially requested a remand for the trial judge to consider certain additional evidence, at oral argument of this appeal the State did not object to expungement of the June 1993 arrest, or to our exercise of original jurisdiction to grant expungement.

For the first time on appeal, appellant asks this court to hold that a petitioner shall be identified by initials, not by full name, on orders, judgments, and opinions addressing expungement. We decline to consider this request.

[Editor's Note: The court's recitation of “For the first time on appeal” lends itself to an inference that J.C., or J.C.'s counsel, was remiss in not asking for identification by initials at an earlier point in time. Such inference would miss the mark. Judge Robert Reed denied J.C.'s Petition when neither counsel for the State, counsel for J.C., nor J.C. himself were in the courtroom. His denial was never preceded by notice to J.C. or counsel that Judge Reed was in any way dissatisfied with the application. Had such notice been provided, J.C., through counsel, would have raised that issue. Judge Reed never afforded J.C. that opportunity.]

Appellant was arrested in Mansfield Township on June 1, 1993, and charged with possession of a controlled dangerous substance (CDS), N.J.S. 2C:35-10a(4), and possession or distribution of a hypodermic syringe or needle, N.J.S. 2C:36-6, both as disorderly persons offenses (DPOs). Appellant was arrested in Camden on August 31, 1993, and charged with possession of a CDS, N.J.S. 2C:35-10a(1) (the August 1993 arrest). He was also arrested in Hillsborough Township on March 8, 2008, for theft by unlawful taking, N.J.S. 2C:20-3a (the March 2008 arrest), and on January 19, 2009, for hindering apprehension, N.J.S. 2C:29-3b(4) (the January 2009 arrest).

The June and August 1993 arrests were consolidated in the Camden municipal court for the purposes of the entry of a plea and sentencing. On November 30, 1994, the Camden municipal court disposed of both matters; however, appellant was unable to obtain the record of the actual disposition of the June 1993 arrest.

Appellant filed a petition for expungement. The State initially objected because appellant had not included the June 1993 arrest in the petition. On January 12, 2012, appellant filed an amended petition for expungement, which included the June 1993 arrest. In an effort to comply with N.J.S. 2C:52-7f regarding the June 1993 arrest, appellant's attorney submitted an affidavit, which explained his paralegal's exhaustive, and ultimately fruitless, search for information about the disposition of that arrest.FN2

FN2. The search included obtaining appellant's Promis/Gavel records, contacting the Camden and Mansfield municipal courts and Camden municipal court judge on numerous occasions, and contacting the New Jersey State Police to obtain appellant's criminal history record.

The State submitted no objection to the amended petition. The judge considered the matter on the papers on April 5, 2012, granted expungement as to the August 1993, March 2008, and January 2009 arrests, and denied expungement as to the June 1993 arrest. The judge noted the June 1993 arrest could be eligible for expungement pursuant to N.J.S. 2C:52-3 or -4, and he determined appellant had made a “comprehensive and diligent” search for information regarding that arrest. Nonetheless, the judge strictly interpreted N.J.S. 2C:52-7f to require disclosure of the actual disposition of the June 1993 arrest. The judge indicated he would possibly reconsider his decision if the State articulated its position.

Thereafter, the judge and appellant's counsel received a letter from the State agreeing that appellant had “seemingly exhausted every possible inquiry” about the disposition of the June 1993 arrest. The State also acknowledged it could not determine what measures were required to comply with N.J.S. 2C:52-7f. The State, therefore, took no position on the amended petition and deferred to the judge's determination. Appellant did not thereafter seek the judge's reconsideration. Instead, he proceeded with this appeal.

[Editor's Note: Darned right “he proceeded with this appeal.” Inexplicably, Judge Robert Reed had taken it upon himself to deny J.C.'s expungement application with no prior notice, and with not a single interested person in the courtroom. His Order denying expungement laconically failed to state why the expungement was being denied. J.C. was able to determine that reason only by ordering the transcript. While awaiting arrival of the transcript, J.C. felt constrained to file an appeal, to preserve his appellate rights. So the Notice of Appeal was prepared. The filing fee was paid. The transcript fee was paid. Given Judge Reed's unnatural eagerness to act on the application without obtaining the State's position, or J.C.'s response, J.C. had no desire to supplicate that same judge for reconsideration. Proverbs 18:13.]

We discern no reason why expungement of the June 1993 arrest should not be granted under the facts of this case. We are satisfied that appellant exhausted every available avenue to verify the actual disposition of that arrest. Further, it appears that the DPOs stemming from the June 1993 arrest were disposed of on November 30, 1994. Assuming the worst case scenario-that appellant was convicted of those offenses-the arrest was eligible for expungement pursuant to N.J.S. 2C:52-3, which provides as follows:

Any person convicted of a disorderly persons offense or petty disorderly persons offense under the laws of this State who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, or of another three disorderly persons or petty disorderly persons offenses, may, after the expiration of a period of 5 years from the date of his conviction, payment of fine, satisfactory completion of probation or release from incarceration, whichever is later, present a duly verified petition as provided in section 2C:52-7 hereof to the Superior Court in the county in which the conviction was entered praying that such conviction and all records and information pertaining thereto be expunged.

[N.J.S. 2C:52-3 (emphasis added).]

Because more than five years have passed from the date of appellant's conviction of the DPOs, the June 1993 arrest is eligible for expungement. FN3 We reverse the denial of expungement of the June 1993 arrest, and grant expungement of that arrest.

FN3. The State concedes this point and takes no position on the expungement.

We decline to consider appellant's request for this court to hold that orders, judgments, and opinions addressing expungement shall identify the petitioner by initials, not by full name. “In the absence of statutory or rule authorization or some other compelling reason, a party will not be permitted to prosecute a civil action anonymously or by pseudonym....” Pressler & Verniero, Current N.J. Court Rules, cmt. 2.3 on R. 1:2-1 (2013). Rule 1:38-3 lists court records excluded from public access, and the list includes “[e]xpunged records pursuant to N.J.S. 2C:52-15.” R. 1:38-3(a)(7). Although there is no statute or rule providing for the use of initials to identify a petitioner granted expungement, the expungement statute addresses court records. N.J .S.A. 2C:52-1a provides that “expungement means the extraction and isolation of all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person's detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system.” In addition, N.J.S. 2C:15-1b provides that “[e]xpunged records shall include complaints, warrants, arrests, commitments, processing records, fingerprints, photographs, index cards, 'rap sheets' and judicial docket records.” Because the trial court partially granted J.C.'s petition and we have ordered additional relief, and because this opinion will be available to the public, we conclude that use of petitioner's initials in this opinion is consistent N.J.S. 2C:52-1.

The denial of expungement of the June 1993 arrest is reversed and expungement of that arrest is granted; the matter is remanded for entry of an amended order.

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