SUPERIOR
COURT OF NEW JERSEY
APPELLATE
DIVISION
IN THE MATTER OF THE
EXPUNGEMENT APPLICATION
OF d.b.
__________________________
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Submitted May 8, 2012 - Decided
Before Judges Fisher and Carchman.
On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Docket No. 11-191.
db
Geoffrey D. Soriano, Somerset County Prosecutor, attorney
for respondent State of New Jersey (Anthony J. Parenti, Assistant Prosecutor,
of counsel and on the brief; Michael D. Celentano, on the brief).
PER CURIAM
Petitioner
dbappeals from the denial of his Petition for Expungement (the
petition) to expunge his adult convictions, which included: a conviction for receiving stolen
property (RSP), N.J.S.A. 2C:20-7a; and two disorderly persons convictions,
one for contempt, N.J.S.A. 2C:29-9b; and one for harassment, N.J.S.A.
2C:33-4a; as well as the records of three arrests in Bridgewater Township. We affirm.
In that same
petition, petitioner also sought, successfully, to expunge adjudications that
occurred when petitioner was a juvenile.
These juvenile offenses, if committed by an adult, included two separate
charges of third-degree burglary, N.J.S.A. 2C:18-2; third-degree
receiving stolen property, N.J.S.A. 2C:20-7; third-degree criminal
attempt, N.J.S.A. 2C:5-1; third-degree theft, N.J.S.A. 2C:20-3a;
possession of imitation controlled dangerous substance, N.J.S.A.
2C:35-11; possession of marijuana with intent to distribute, N.J.S.A.
2C:35-5a and N.J.S.A. 2C:35-5b(11); distribution of a controlled
dangerous substance on school property, N.J.S.A. 2C:35-7; and
third-degree credit card fraud, N.J.S.A. 2C:21-6d.
The juvenile
offenses occurred during a nine-month span from August 4, 1993 to April 27,
1994, while petitioner was sixteen years old. The adult RSP offense occurred in the Fall 1995, when
petitioner was eighteen years old.
The disorderly persons offenses were committed when petitioner was
twenty-two years old. Petitioner,
now thirty-five, has no other offenses.
He is married and gainfully employed in the insurance industry. Apparently, his adult RSP conviction is
a barrier to his further career advancement.
On appeal,
petitioner raises the following issues:
POINT ONE
THE TRIAL COURT AND THE
PROSECUTOR ARE MISUNDERSTOOD IN THE FACTS THAT [PETITIONER] MEETS EVERY
REQUIREMENT OF [N.J.S.A.] 2C:52-2 INDICTABLE OFFENSES WHICH INDICATES
THAT HIS SOLE CRIME OF RECEIVING STOLEN PROPERTY CAN BE EXPUNGED. PARTS OF THIS POINT WERE NOT ACCURATELY
ARGUED DURING THE HEARING.
POINT TWO
THE PRIMARY BASIS FOR TRIAL COURT'S DECISION AND THE
PROSECUTOR'S ARGUMENT [IS] INCORRECT DUE TO THEIR SPECIFIC MISUNDERSTANDING OF N.J.S.A.
2C:52-2 AND N.J.S.A. 2C:52-4.1, AND HOW THEY RELATE TO EACH OTHER. THE TRIAL COURT CONSTRUED THEIR OWN LAW
IN THIS DECISION AND CLEARLY DID NOT TAKE INTO ACCOUNT THAT AN EXPUNGEMENT CAN
BE DENIED ONLY IF A [PETITIONER] [IS] NOT ELIGIBLE BY THE EXPLICIT TERMS OF THE
STATUTE. [SEE STATE V.
KING,] 340 [N.J. SUPER.] 390 (APP. DIV[.] 2001).
POINT THREE
THE TRIAL JUDGE, THE HONORABLE ANGELA F. BORKOWSKI[,] HAS
DEMONSTRATED A MISUNDERSTANDING OF THE EXPUNGEMENT STATUTE IN GENERAL AND
[PETITIONER'S] CASE FOR EXPUNGEMENT.
IN ADDITION, CERTAIN LANGUAGE WITHIN HER WRITTEN OPINION INDICATE[S] A
DISAGREEMENT OR PERCEIVED VIEW THAT THE EXPUNGEMENT STATUTE IS NOT WRITTEN
FAIRLY. THE LAW AND THE STATUTE
HAVE BEEN DISREGARDED WITH RESPECT[] TO [PETITIONER'S] CASE.
POINT FOUR
IT IS[,] IN FACT[,] THE STATE AND THE SOMERSET COUNTY
PROSECUTOR'S OFFICE THAT ARE LOOKING FOR "TWO BITES OF THE APPLE" AND
[THE] TRIAL COURT LET THIS HAPPEN.
FOR THIS FOURTH[-]DEGREE CRIME OF RECEIVING STOLEN PROPERTY, THEY DENIED
PRE-TRIAL INTERVENTION FOR [PETITIONER] IN 1995 DUE TO THE PRESENCE OF HIS
JUVENILE ADJUDICATIONS. NOW THE
STATE IS CHALLENGING HIS EXPUNGEMENT OF THIS CRIME[] FOR THE SAME REASONS.
POINT FIVE
EVEN IF [PETITIONER'S] ARGUMENT[S] ON THE STATUTORY[] BAR[]
ARE NOT CORRECT, THERE IS NO WAY THAT IT CAN BE CONSTRUED THAT THE STATUTE IS
CLEARLY WRITTEN. AFTER [STATE
V. KING], 340 [N.J. SUPER.] 390 (APP. DIV[.] 2001) IS TAKEN INTO
ACCOUNT, WHICH STATES THAT AN EXPUNGEMENT CAN ONLY BE DENIED IF THE
[PETITIONER] IS NOT ELIGIBLE BY THE EXPLICIT TERMS OF THE STATUTE. IF THIS ARGUMENT IS NOT HONORED, THEN
[PETITIONER'S] EXPUNGEMENT REQUEST MUST TURN INTO A DISCRETIONARY SITUATION AND
IT MUST BE DETERMINED WHAT IS [IN] THE INTEREST OF JUSTICE. AS MENTIONED IN SECTION N.J.S.A.
2C:52-2, "THE COURT CAN FIND IN ITS DISCRETION 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."
We affirm
substantially for the reasons set forth in Judge Angela F. Borkowski's thorough
and thoughtful written opinion of September 8, 2011. We add the following comments.
The focus of
petitioner's argument before the Law Division and now on appeal is the import
of N.J.S.A. 2C:52-4.1. That
statute provides that "[f]or purposes of expungement, any act which
resulted in a juvenile being adjudged a delinquent shall be classified as if
that act had been committed by an adult."
In analyzing the
import of this provision, the judge noted:
While [petitioner] may be correct in his assertion that the
phrase "adjudication of delinquency" does not expressly appear as a
bar to expungement in N.J.S.A. 2C:52-2, the phrase is made applicable to
that section through N.J.S.A. 2C:52-4.1. The text of N.J.S.A. 2C:52-4.1 reads, in part,
"[f]or purposes of expungement, any act which resulted in a juvenile being
adjudged a delinquent shall be classified as if that act had been committed by
an adult." N.J.S.A.
2C:52-4.1(a). It is necessary to
examine this part of the section within its context in order to determine the
meaning of the word "classified." The text immediately follows instructions that acts
committed by a juvenile which would be a crime if committed by an adult are
properly petitioned under N.J.S.A. 2C:52-2, disorderly or petty
disorderly persons offenses under N.J.S.A. 2C:52-3, and ordinance
violations under N.J.S.A. 2C:52-4.
It is, therefore, apparent that any act which resulted in a juvenile
being adjudged a delinquent, and which would have been a crime if committed by
an adult, must be considered a crime for purposes of expungement. Any other interpretation of this
language would result in it being superfluous.
We
agree with her analysis. The
import of the statute reflects the legislative intent that a petitioner's
juvenile record is a critical element in the expungement process.
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Affirmed.
