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Sunday, November 01, 2015

Expungment denied where prior diversion in Florida IN RE PETITION OF J.R.

September 16, 2015

Argued September 1, 2015 – Decided

Before Judges St. John and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. 482-13


                                                                                    SUPERIOR COURT OF NEW JERSEY
                                                                                    APPELLATE DIVISION
                                                                                    DOCKET NO.  A-5878-13T3PER CURIAM

Defendant appeals from an order denying his petition for expunction.[1]  The trial judge held that pursuant to N.J.S.A. 2C:52-14(f), defendant's petition to expunge his convictions for disorderly persons offenses was barred as he had subsequent criminal charges dismissed following completion of a diversionary program.  We affirm substantially for the reasons set forth in the written opinion of Judge John A. Young, Jr.  We add only the following.
            Defendant was arrested on June 19, 2002, in North Bergen and charged with the disorderly persons offense of failure to disperse a riot, N.J.S.A. 2C:33-1.  Defendant pled guilty to the offense on October 8, 2002.
            On September 9, 2002, defendant was arrested in Union City and charged with burglary, N.J.S.A. 2C:18-2.  After he was indicted, defendant pled guilty to the downgraded charge of criminal trespass, a disorderly persons offense, N.J.S.A. 2C:18-3.
            Defendant was arrested on September 27, 2009, in Miami Beach, Florida for trespassing and disorderly conduct.  On April 27, 2010, the charges were dismissed after defendant successfully completed a pre-trial diversionary program.
            On November 6, 2013, defendant filed a petition seeking to expunge his convictions on the disorderly persons offenses.  The State objected to the petition based upon defendant's failure to list his Florida arrest and argued that defendant was ineligible for expunction per N.J.S.A. 2C:52-14(f) due to the completion of the diversionary program.
            On appeal, defendant argues the charges in Florida were misdemeanors, equivalent to disorderly persons offenses in New Jersey, and therefore did not qualify as "criminal charges" under N.J.S.A. 2C:52-14(f).  We disagree. 
            N.J.S.A. 2C:52-14(f) provides that a petition for expunction filed pursuant to this chapter shall be denied when "[t]he person seeking the relief of [expunction] of a conviction for a disorderly persons, petty disorderly persons, or criminal offense has prior to or subsequent to said conviction been granted the dismissal of criminal charges following completion of a supervisory treatment or other diversion program."
            As the judge noted in his decision denying the petition:
While a disorderly persons offense and petty disorderly persons offense are not crimes as defined in N.J.S.A. 2C:1-4, I find that disorderly persons offenses and petty disorderly offenses are criminal charges.  Disorderly persons and petty disorderly persons offenses are contained within Title 2C – New Jersey's Criminal Code and are inherently criminal in nature.  Further, while disorderly and petty disorderly persons offenses are not charged in an indictment, a defendant is still "charged" with such an offense by way of a complaint – whether it be a warrant or summons complaint as permitted by R. 3:3-1.  For these reasons I find that Petitioner's Florida arrest for trespassing and disorderly conduct, constitute a disorderly persons offense and petty disorderly persons offense, respectively, in New Jersey, and thus, are criminal charges.

            In reaching our decision we discern no misapplication of the law.  We find no merit to defendant's argument that the Florida charges were not "criminal."  Having qualified as criminal charges, the dismissal of the charges following defendant's completion of the diversionary program barred the relief.

Description: certify

[1] Although Chapter 52 is captioned "Expungement of Records," "expungement" is not recorded in either the Oxford English Dictionary or Webster's New World Dictionary.  See Garner's Dictionary of Legal Usage/Brian A. Garner, Third Edition.  However, see In Re Expungement Petition of J.S., ___ N.J. ___, ___ (2015) (slip op. at 1).