Endangering child not eligible for expungement here
IN THE MATTER OF THE
EXPUNGEMENT APPLICATION
OF A.T.
_______________________________
Argued October 10, 2019 – Decided January 8, 2020
Before Judges Suter and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0509-18T2
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
A.T. appeals the order denying expungement of his conviction for third
degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). In State v. N.T.,
___ N.J. Super. ___ (App. Div. 2019) (slip op. at 7-10), we recently held that an
offense under N.J.S.A. 2C:24-4(a)—even if nonsexual in nature—could not be
expunged. Defendant's appeal raises the same legal issue raised in N.T. We
find N.T.'s analysis is persuasive.1 The plain language of the expungement
statute, N.J.S.A. 2C:52-2(b), precludes expungement of a conviction under
N.J.S.A. 2C:24-4(a). We affirm the trial court's August 27, 2018 order.
Petitioner was arrested in 2003 and charged with "luring, enticing a child
by various means," N.J.S.A. 2C:13-6; aggravated sexual assault, N.J.S.A.
2C:14-2(a)(2); endangering the welfare of a child, N.J.S.A. 2C:24-4(a); and
conspiracy to commit aggravated sexual assault, N.J.S.A. 2C:5-2. Petitioner
pleaded guilty to the child endangerment count for serving alcohol to a minor
and was sentenced to three years' probation, fines and penalties. The other
charges were dismissed.
Petitioner also was arrested in 2003 for simple assault causing bodily
injury, N.J.S.A. 2C:12-1(a)(1). Petitioner pleaded guilty to the amended charge
of violating a borough ordinance and was fined.
1
We are not bound by the opinion of another panel of the Appellate Division.
See Brundage v. Estate of Carambio, 394 N.J. Super. 292, 298 n.4 (App. Div.
2007), rev'd on other grounds, 195 N.J. 575, 593 (2008).
A-0509-18T2
2
Petitioner filed a petition in 2017 to expunge both of these convictions. It
was amended to include a guilty plea in 2007 to violation of a local loitering
ordinance. The prosecutor opposed petitioner's expungement application,
arguing the conviction for child endangerment under N.J.S.A. 2C:24-4(a) could
not be expunged. The petition was denied on August 27, 2018, and later, under
Rule 2:5-1(b), the court amplified its reasons.
On appeal, petitioner raises the following argument:
THE COURT BELOW ERRED WHEN IT DENIED
THE PETITION FOR EXPUNGEMENT.
CONTRARY TO THE UNDERSTANDING OF THE
COURT AND THE PROSECUTOR'S OFFICE, THE
2016 AMENDMENT TO N.J.S.A. 2C:52-2 DID NOT
CHANGE THE PRIOR LAW, WHICH WAS THAT A
NON-SEXUAL ENDANGERING THE WELFARE
OF A MINOR WAS AN EXPUNGEABLE OFFENSE.
"The Legislature's intent is the paramount goal when interpreting a statute
and, generally, the best indicator of that intent is the statutory language."
DiProspero v. Penn, 183 N.J. 477, 492 (2005) (citing Frugis v. Bracigliano, 177 N.J. 250, 280 (2003)). We are not to "rewrite a plainly-written enactment of the
Legislature [or] presume that the Legislature intended something other than that
expressed by way of the plain language." O'Connell v. State, 171 N.J. 484, 488
(2002). We cannot add qualifications the legislature did not include.
DiProspero, 183 N.J. at 492 (citing Craster v. Bd. of Comm'rs, 9 N.J. 225, 230
A-0509-18T2
3
(1952)). We review this issue de novo because it raises an issue of statutory
interpretation. Beim v. Hulfish, 216 N.J. 484, 497 (2014).
The expungement statute 2 prohibits the expungement of certain
convictions.
Records of conviction for the following crimes
specified in the New Jersey Code of Criminal Justice
shall not be subject to expungement . . . subsection a.
of N.J.S.2C:24-4 (Endangering the welfare of a child
by engaging in sexual conduct which would impair or
debauch the morals of the child, or causing the child
other harm); paragraph (4) of subsection b. of
N.J.S.2C:24-4 (Photographing or filming a child in a
prohibited sexual act or for portrayal in a sexually
suggestive manner); paragraph (3) of subsection b. of
N.J.S.2C:24-4 (Causing or permitting a child to engage
in a prohibited sexual act or the simulation of an act, or
to be portrayed in a sexually suggestive manner);
subparagraph (a) of paragraph (5) of subsection b. of
N.J.S.2C:24-4 (Distributing, possessing with intent to
distribute or using a file-sharing program to store items
depicting the sexual exploitation or abuse of a child);
subparagraph (b) of paragraph (5) of subsection b. of
N.J.S.2C:24-4 (Possessing or viewing items depicting
the sexual exploitation or abuse of a child) . . . .
[ N.J.S.A. 2C:52-2(b) (emphasis added).]
Petitioner's conviction under N.J.S.A. 2C:24-4(a) cannot be expunged
under this statute. First, the expungement statute enumerates subsection "a" as
2
The expungement statute's recent amendment did not change the language
relevant to this appeal. See L. 2019, c. 269.
A-0509-18T2
4
one of the offenses that cannot be expunged. Next, the language in the
parenthetical that follows the statutory citation includes conduct "causing the
child other harm" without making any reference in that phrase to sexual conduct.
A court is not to "presume that the Legislature intended something other than
what it expressed in plain words." In re Plan for Abolition of the Council on
Affordable Hous., 214 N.J. 444, 468 (2013). Where there is no ambiguity in the
language of a statute, as is the case here, "a court's task is complete." Ibid.
Petitioner was convicted under N.J.S.A. 2C:24-4(a) and a conviction under that
statute can not be expunged.
Petitioner contends this result was not the intent of the Legislature. He
argues that reference in the parenthetical to "causing the child other harm" was
limited to other harm caused by sexual conduct. In N.T., we explained:
[t]he phrases "who engages in sexual conduct which
would impair or debauch the morals of a child" and
"who causes the child harm that would make the child
an abused or neglected child" are separated by a comma
and the word "or" indicates they are disjunctive and
refer to a list of two distinct harms.
[N.T., ___ N.J. Super. ___ (slip op. at 8).]
Thus, we rejected petitioner's construction of the parenthetical.
A-0509-18T2
5
Petitioner argues that the expungement statute has always allowed the
expungement of convictions for non-sexual harms. Petitioner cites to the statute
before it was amended in 2016 as evidence of this intent.
Specifically, in 2004, when petitioner pleaded guilty, and until 2016, the
statute provided:
Records of conviction for the following crimes
specified in the New Jersey Code of Criminal Justice
shall not be subject to expungement . . . section 2C:24-
4a. (Endangering the welfare of a child by engaging in
sexual conduct which would impair or debauch the
morals of the child)[.]
[ N.J.S.A. 2C:52-2(b) (1994).]
It did not include reference to "other harms." The language "causing the child
other harm" was added in 2016. The committee statement accompanying the
bill provided the purpose of the amendment was to "update, using the accepted
current citation format, the statutory citations for the list of criminal convictions
that are not subject to expungement; such updating does not add any additional
crimes to this list[.]" Statement of the Senate Judiciary Comm. to A. 206, 471,
1663, 2879, 3060, and 3108 (May 7, 2015). Because the original parenthetical
only referenced sexual conduct, petitioner argues the Legislature did not intend
to expand the list of prohibited crimes when it amended the statute in 2016 to
add "other harm" that was not sexual in nature.
A-0509-18T2
6
We rejected a similar argument in In re Expungement of W.S., 367 N.J.
Super. 307, 312-13 (App. Div. 2004). W.S. concerned N.J.S.A. 2C:52-2(b)'s list
of non-expungable offenses, specifically a conviction under "section 2C:14-2
(Aggravated Sexual Assault). . . ." Id. at 310. The statute prohibited
expungement under N.J.S.A. 2C:14-2 without making a distinction between
different degrees of the offense. It was the parenthetical that followed the
statutory citation that gave rise to the question about the scope of the statute's
prohibition. The issue in W.S. was "whether the parenthetical reference to
'aggravated sexual assault' following 'section 2C:14–2' in N.J.S.A. 2C:52–2(b)
limit[ed] the violations of N.J.S.A. 2C:14–2 that [were] not subject to
expungement to aggravated sexual assaults or [was it] simply an incomplete
description of the offenses proscribed by N.J.S.A. 2C:14–2." Id. at 311. In
W.S., we held the parenthetical that followed the statutory citation was "simply
an incomplete and thus inaccurate description of this offense that does not limit
the scope of the prohibition against expungement." Id. at 312-13.
Here, the expungement statute unequivocally states that offenses under
subsection "a" of N.J.S.A. 2C:24-4 cannot be expunged. In 2004, when
petitioner pleaded guilty, paragraph "a" of the child endangerment statute
provided:
A-0509-18T2
7
Any person having a legal duty for the care of a child
or who has assumed responsibility for the care of a
child who engages in sexual conduct which would
impair or debauch the morals of the child, or who
causes the child harm that would make the child an
abused or neglected child as defined in R.S.9:6-1,
R.S.9:6-3 and P.L.1974, c. 119, s.1 (C.9:6-8.21) is
guilty of a crime of the second degree. Any other
person who engages in conduct or who causes harm as
described in this subsection to a child under the age of
[sixteen] is guilty of a crime of the third degree.
[ N.J.S.A. 2C:24-4(a) (2001) (emphasis added).]
At least since 1979, the statute has included reference in subsection "a" to "harm
that would make the child an abused or neglected child." L. 1979, c. 178, §46.
In 2013, the statute was amended. N.J.S.A. 2C:24-4(a)(1) now addresses
"sexual conduct which would impair or debauch the morals of the child."
N.J.S.A. 2C: 24-4(a)(2) addresses "harm that would make the child an abused
or neglected child as defined in [specific sections of Title Nine]." Had the
legislature intended to limit the expungement statute to sexual offenses only, it
could have said so in the 2016 amendments because by then N.J.S.A. 2C:24-4(a)
had been amended to create subsections (a)(1) and (a)(2). We observed in N.T.
that "[t]he Legislature did not do so. We infer, through well-established law,
that the omission was intentional." N.T., ___ N.J. Super. ___ (slip op. at 9)
(citing Ryan v. Renny, 203 N.J. 37, 58, (2010)).
A-0509-18T2
8
We conclude that the expungement statute's parenthetical prior to 2016
was not intended to limit the scope of the prohibition against expungement to
sexual conduct only. To read the expungement statute otherwise would be to
limit the legislature's inclusion of subsection "a" to just a portion of that statute,
despite the Legislature's longstanding inclusion in N.J.S.A. 2C:24-4(a) of sexual
and non-sexual offenses.
Affirmed.
