IN RE PETITION OF J.R.
TO EXPUNGE A CRIMINAL RECORD.
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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
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
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.
Affirmed.
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[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).
