As indicated in answer to FAQ 24, five break points thwart completion of the expungement process in any amount of time that might be considered reasonable. Table One summarizes those five points:
Break Point One encompasses two distinct steps. The first step is the Criminal Division Manager receives the Petition, dockets it, and forwards it to the expungement judge. In the second step, the expungement judge sets the hearing date, signs the Order Fixing Hearing Date, and returns copies of the Order and filed Petition to Expungement Lawyers in New Jersey™. This entire process typically takes from about ten days to three weeks. Expungement Lawyers in New Jersey™ know that this step has been completed when the signed Order Fixing Hearing Date arrives back in the mail together with a filed copy of the Petition.
Break Point One seldom encounters significant difficulties. However, when nothing has come back after three weeks or so, telephone inquiries are in order. These inquiries begin with the Criminal Division Manager. Those inquiries will determine whether they processed the Petition, or whether they even received it. If they did, and they forwarded it to the expungement judge, they will indicate the forwarding date. Armed with that information, the next inquiry will be with the judge's law clerk to inquire the reason for the hold up.
The lawyer's tact and charm here can often move things along. Sometimes, though, tact and charm are not enough. Then Expungement Lawyers in New Jersey™ can go up the chain of command to move the process along. This remedy is seldom necessary. The highest level Expungement Lawyers in New Jersey™ have ever had to go with regard to Break Point One was the county assignment judge. In their experience, it reached that point only once. On that one occasion, it got quick results.
Break Point Two concludes when New Jersey State Police completes its analysis and sends to the county prosecutor the results of its investigation, and its recommendation. New Jersey State Police never inform Expungement Lawyers in New Jersey™ directly of that completion. Thus Expungement Lawyers in New Jersey™become aware of delay at Break Point Two only upon non-arrival at Break Point Three.
Inquiries into delays at Break Point Three almost always reveal that the hold up is actually at Break Point Two. If the hold up is at Break Point Two with no relief in sight, it is time to consider making waves. “Making waves” means asking the expungement judge to schedule a hearing. If we reach this point in the first place, the original hearing date will have already come and gone. The procedure now will be to ask the judge's law clerk to list it again. (Sometimes it will have been automatically relisted. In that case, just tell the law clerk and the prosecutor that you intend to show up and argue the matter.) This notification by itself may be enough to get things moving. If not, then, at the hearing, recite the original signed order fixing hearing date, and the absence of adverse information having been provided to the court. Come prepared to make a record that the New Jersey State Police failure to act is not a one-time event but, rather, is just another instance of a widespread pattern of New Jersey State Police disregarding legislative and judicial mandates. Ergo, judge, please grant the expungement now with no further delay.
Many judges will lack the backbone to do that, even though it would be the fair and just decision. The most likely outcome here is that the judge will cite some lame excuse and give the State more time to do what should have been done long ago. Be prepared for this. Come to the court room with an order for the judge to sign. This is an order that refuses to grant the expungement at that time. This is not a denial of the expungement application. All the order does is extend the time within which New Jersey State Police can continue to proceed at its glacial pace. The judge will probably sign the order. The order that you prepare can specify a definite date by which, unless New Jersey State Police has acted, the expungement will be granted. One way or the other, you are entitled to an order memorializing the judge's ruling. The judge will seldom refuse to sign such an order. It the date is intolerably far into the future, you can then ask the Superior Court of New Jersey, Appellate Division, for leave to appeal, and to grant the expungement.
The Appellate Division may refuse leave to appeal. You can seek the same relief at the next (and final) level, the Supreme Court of New Jersey. That Court, similarly, may or may not grant leave to appeal.
Processing time for appellate applications is months. Because the entire issue involves delay, you can ask the courts to expedite consideration. If they grant leave to appeal in the first place (a big if), they will probably also agree to expedite proceedings. Regardless, while pursuing these steps, New Jersey State Police and the county prosecutor will probably have completed their processing and either granted or denied the expungement. Response to the granting or denial will then proceed as normal.
The procedure just outlined is likely to not prolong completion of Break Point Two beyond what it would have been without the efforts. It has the potential of shortening the time to completion. If New Jersey State Police completes its processing before appellate proceedings have run its course, the State, or the appellate court itself, may suggest that the appeal should be dismissed because there is no further relief to be granted. You can accede to that suggestion if you like, since you will have already obtained the relief that you sought. Alternatively you can ask the court to keep the case open, to help expungement applicants in line behind you.
The course of action just explained is drastic. It will be costly--very costly. It is not guaranteed to succeed. We spell out this process, not because we seriously expect that anyone will pursue it. Rather, we explain fully what is involved in order to point out the difficulty of the situation, and your options.
In the unusual case where the actual holdup is at Break Point Three, tact and charm again become in order. Call the expungement assistant prosecutor, or his or her paralegal. See whether you can get him or her to act. Where the response is unsatisfactory, or where the expungement assistant prosecutor does not return your calls, ask the first assistant prosecutor to intervene. They are usually helpful.
Break Point Four: Judges in some counties look at expungement applications only once a month. In those situation, tact and charm typically fall on deaf ears. Persons whose Petitions are pending in those counties have little recourse but to grit their teeth and endure it. On the other hand, delay at Break Point Four sometimes results from stalling at Break Points Two or Three. In those situations, steps are available, as just explained. When delay at Break Point Four exists, the only remedy available is tact and charm. Making waves at this point is probably inappropriate.
In most respects, recourse at Break Point Five is very similar to that at Break Points Two and Three. It begins with asking the court to list the matter for a hearing. Unlike the situation at Break Points Two and Three, the hearing will never have already been scheduled since, by definition, we reach this point only after the expungement application has already been granted and the court has marked the case closed. The procedure at this point has a formal name: Motion To Enforce Litigant's Rights. At the hearing on this Motion To Enforce Litigant's Rights, Expungement Lawyers in New Jersey™ will recite the following:
- The unreasonable length of time that has already passed;
- The legislative provision that the hearing is supposed to be held within no more than sixty days;
- The fact that delays such as are happening here are the rule, not the exception;
- The Petitioner is unable to work or obtain other civil rights on account of this unjust delay.
If the expungement applicant applicant prevails at this step, court rules allow for award of attorney's fees to the successful applicant. That is not to say fees will be awarded; it is within the court's discretion. On the one occasion that Expungement Lawyers in New Jersey™ invoked this procedure, they prevailed, but the court denied fees. Expungement Lawyers in New Jersey™ believe that many or most judges on similar applications will be sufficiently incensed over the contumacious failure of New Jersey State Police to process the expungement order that they will have little difficulty awarding counsel fees.
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