IN THE MATTER OF THE
EXPUNGEMENT OF E.M.1
______________________________
Submitted January 22, 2018 – Decided February 8, 2018
Before Judges Sabatino and Ostrer.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. MX-470-
15.
Essex-Newark Legal Services, attorneys for
appellant E.M. (Felipe Chavana, Executive
Director, of counsel and on the brief;
Elizabeth A. Duelly, on the brief).
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent State of
New Jersey (Frank J. Ducoat, Special Deputy
Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
After E.M. fulfilled all but one condition of
pretrial
intervention, the trial court entered a June 2013 order dismissing
the indictment charging him with second-degree conspiracy to
1 We grant petitioner's renewed request, which is unopposed, to
shield his name and to impound the record.
commit theft; second-degree theft; and second-degree financial
facilitation of criminal activity. The one remaining unfulfilled
condition was payment of restitution of over $58,000. Defendant
had dutifully paid $102 a month, as ordered, but a balance of over
$55,000 remained. The court ordered entry of a civil judgment in
favor of the Probation Division for that amount. Over two years
later, still dutifully reducing his amount due, E.M. filed a
verified petition to expunge the record of his arrest, indictment
and related proceedings, pursuant to N.J.S.A. 2C:52-6.
The prosecutor initially opposed the petition, contending
that (1) the arrest was "the subject matter of civil litigation,"
N.J.S.A. 2C:52-14(d); and (2) "the need for the availability of
the records outweigh[ed] the desirability" of expungement,
N.J.S.A. 2C:52-14(b). The trial court thereafter dismissed
defendant's petition without prejudice "because petitioner owes a
balance."
E.M. appeals, arguing that his outstanding financial
obligation is not an impediment to expungement. Abandoning its
position before the trial court, the State now agrees. Noting
that the trial court did not rely on its "need for the availability
of records" argument, the State also does not renew that position
before us.
We agree with the parties and write briefly because the issue
is capable of repetition. The question is a purely legal one that
we review de novo. In re Expungement Petition of J.S., 223 N.J.
54, 72 (2015). We need look no further than the plain, unambiguous
language of the statute. In re Kollman, 210 N.J. 557, 568 (2012).
A person is generally entitled "to expungement of all records and
information relating to [an] arrest or charge" after dismissal,
acquittal, or discharge without a conviction or finding of guilt.
N.J.S.A. 2C:52-6(a). However, "[a]ny person who has had charges
dismissed against him [or her] pursuant to a program of supervisory
treatment pursuant to N.J.S.[A.] 2C:53-12 [pretrial intervention]
. . . shall be barred from the relief provided . . . until six
months after the entry of the order of dismissal." N.J.S.A. 2C:52-
6(c)(1).
E.M. satisfied those prerequisites. Therefore, he was
presumptively entitled to expungement, and the burden shifted to
the State to establish a basis for denying relief under N.J.S.A.
2C:52-14. See Kollman, 210 N.J. at 569-70 (discussing shifting
burdens).
As the State now concedes, an outstanding judgment,
consisting of a restitutionary balance due, does not render E.M.'s
"arrest . . . the subject matter of civil litigation." N.J.S.A.
2C:52-14(d). That provision refers to pending civil litigation.
State v. J.R.S., 398 N.J. Super. 1, 5 (App. Div. 2008). Also, the
"civil litigation" exception was apparently designed to assure
that the litigant is not deprived of the information necessary to
prosecute or defend the litigation. Id. at 5-6. There is no
pending litigation here, nor does the Probation Division need to
use E.M.'s arrest records to enforce the civil judgment, which
shall survive the expungement.
Therefore, we reverse the trial court's order and remand for
entry of an order of expungement.
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