In re LB

• Decision Date: 02 February 2004
• Citation: 848 A.2d 899,369 N.J. Super. 354
• Parties: In the Matter of the Petition of L.B. (Formerly Known as L.T.) for Expungement of Criminal Records.
• Court: New Jersey Superior Court

848 A.2d 899

369 N.J. Super. 354

In the Matter of the Petition of L.B. (Formerly Known as L.T.) for Expungement of Criminal Records.

Superior Court of New Jersey, Law Division, Hunterdon County.

Decided February 2, 2004.

Anthony P. Kearns, III, Rylak & Gianos, Clinton, for Petitioner.

J. Patrick Barnes, Hunterdon County Prosecutor, for the State. (Dawn M. Solari, Assistant Prosecutor, on the brief).

ASHRAFI, J.S.C.

The issue in this case is whether a pardon granted by the Governor permits expungement of a criminal record that would otherwise be barred by statute. In the absence of a statute that says it does not, this court concludes that the pardon permits expungement.

Petitioner L.B. seeks expungement of the records of her arrest and conviction for a serious drug offense in 1987 when she was nineteen years old. According to petitioner, she committed the crime by providing a ride to someone to buy cocaine in New York in exchange for receiving some cocaine for her own use. Since the time of her conviction, petitioner has led a law-abiding and admirable life. The State objects to her petition to expunge her criminal record, citing ineligibility under the expungement statute.

I. Factual and Procedural Background

In February 1988, a grand jury indicted petitioner, then known by her maiden name, for violations of N.J.S.A. 2C:35-10(a)(1), possession of cocaine, a third degree offense, and of N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(2), possession of cocaine with intent to distribute, a second degree offense because of the quantity of cocaine. Under a plea agreement, petitioner pleaded guilty to possession of cocaine with intent to distribute as down-graded to a third degree offense. She was sentenced in June 1988 to two years of probation without any period of incarceration but with mandatory money penalties applicable to a drug offense and a six-month suspension of her driver's license.

In June 1991, petitioner was discharged from probation having complied with all its conditions and having met all financial obligations. Since then petitioner has not been arrested or charged again with any offense. She has never previously been granted expungement of any criminal record.

On January 30, 2001, Governor Christine Todd Whitman granted petitioner a pardon for the 1988 drug conviction. The pardon states:

I, Christine Todd Whitman, Governor of the State of New Jersey, by virtue of the authority conferred upon me by the Constitution of New Jersey and the statutes of this State in such case made and provided, do hereby grant to the said [L.T.], a full and free Pardon for the aforesaid crime, and this order is applicable solely to said conviction, and to no other.

On April 14, 2003, petitioner filed this petition for expungement.

Petitioner explains that her arrest and conviction were the results of drug addiction as a teenager and her acquaintance with an older man who was a drug dealer. She says that she drove the man to New York for the purpose of buying cocaine and that in exchange she was given some free cocaine. She claims that she did not herself sell or distribute the drugs, but was arrested in connection with a sting operation aimed at her acquaintance.

Petitioner documents a successful change of lifestyle in the fifteen years since her arrest and conviction. Immediately after her arrest, she entered and successfully completed drug rehabilitation programs. She says proudly now that she has been sober and clean for fifteen years. She graduated from Raritan Valley Community College and Rider University, being named on the dean's list for academic achievement. She has maintained stable employment, including her current position as an accountant. She has an impressive record of volunteer work in substance-abuse centers and other settings. She has attached to her petition a number of laudatory letters from drug counselors, government officials, employers, neighbors, friends, and others attesting to her achievements and good character. At the age of thirty-five, she can point back to an exemplary life as an adult.

Petitioner desires expungement so that her criminal records will no longer inhibit her career development or her aspirations to adopt a child.

The State does not argue that any facts presented by petitioner are inaccurate or that it has any particular need to maintain her criminal record. The State says simply that, under N.J.S.A. 2C:52-2(c) and 2C:52-14(a), her conviction for possession of cocaine with intent to distribute is ineligible for expungement.

II. Legal Discussion and Conclusions

A. The Statutes

The expungement statute at issue here, N.J.S.A. 2C:52-2(a), states in pertinent part:

In all cases, except as herein provided, wherein a person has been convicted of a crime under the laws of this State and who has not been convicted of any prior or subsequent crime ... may, after the expiration of a period of 10 years from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later, present a duly verified petition praying that such conviction and all records and information pertaining thereto be expunged.

The relevant exception, N.J.S.A. 2C:52-2(c), provides:

In the case of conviction for the sale or distribution of a controlled dangerous substance or possession thereof with intent to sell, expungement shall be denied except where the crimes relate to:

(1) Marijuana, where the total quantity sold, distributed or possessed with intent to sell was 25 grams or less, or

(2) Hashish, where the total quantity sold, distributed or possessed with intent to sell was five grams or less.

B. Application of the Statutes to Petitioner's Crime

Petitioner herself did not possess cocaine with intent to sell it, but only received and possessed cocaine for her own use. Nevertheless, she was charged with and pleaded guilty to the crime of possession with intent to distribute as an accomplice, or aider and abettor, of the man who was the drug dealer.

Recently, in another case, the Appellate Division addressed the statutory bar to expungement in the context of accomplice liability. The facts of that case, In re D.A.C., 337 N.J.Super. 493, 767 A.2d 976 (App.Div.2001), resemble L.B.'s petition here. In D.A.C., the petitioner had pleaded guilty in 1981, when twenty-three years old, to the charge of distribution of LSD. He was sentenced to a two-year term of probation. Nearly twenty years later, he filed a petition for expungement and claimed to have successfully changed his lifestyle, attained a college degree, and secured consistent employment in the time since his conviction. The trial court denied his petition to expunge because of the statutory bar for serious drug offenses. On appeal, he argued that his role in the offense was merely that of an accomplice and that the statute only prohibits expungement when one is convicted of committing the crime as a principal, the person who actually distributes or intends to sell the drugs. The Appellate Division rejected the argument, holding that the statutory bar applies as well to those convicted of aiding and abetting the possession of drugs with intent to sell.

The petitioner in D.A.C. also argued that expungement should be granted on the basis of a certain earlier unpublished Appellate Division decision. In response, the court said:

Petitioner urges that expungement should be granted on the authority of our unreported opinion in State v. Eccleston, (A-2653-98T2) (App.Div.1999), where we affirmed an order granting expungement. Eccleston, however, presents no basis for expunging petitioner's offense. As noted, N.J.S.A. 2C:52-2c prohibits expungement of a "conviction for the sale or distribution of a controlled dangerous substance or possession thereof with intent to sell ...." The offense whose expungement we affirmed in Eccleston, however, was possession with intent to distribute, not possession with intent to sell, and thus it was not identical to the crimes defined in N.J.S.A. 2C:52-2c. By contrast, petitioner's crime, distribution of CDS, is specifically listed in that provision as one of the crimes whose expungement the Legislature has forbidden.

[D.A.C., 337 N.J.Super. at 497-98, 767 A.2d at 979 (emphasis added).]

In the highlighted language quoted above, the court seems to say that the Legislature only barred expungement when the crime is possession with intent to sell, not possession with intent to distribute in the complete legal definition of that term.

The distinction between intent to distribute and intent to sell reflects the broad definition of "distribution" under the provisions of the Criminal Code. See N.J.S.A. 2C:35-2 (definitions of "distribute" and "deliver"). Sharing drugs without selling them is still distribution under cases that have construed the meaning of that term. See, e.g., State v. Roach, 222 N.J.Super. 122, 127, 536 A.2d 282, 285 (App.Div.1987), certif. denied, 110 N.J. 317, 540 A.2d 1293 (1988); State in the Interest of A.J., 232 N.J.Super. 274, 285-87, 556 A.2d 1283, 1289-91 (App.Div.1989). Thus in D.A.C., the Appellate Division appears to have concluded that conviction of possession with intent to distribute drugs in the sense of sharing with others can be expunged while possession with intent to sell the drugs cannot.

Counsel for L.B. attempts to apply literally the language of D.A.C. quoted above to argue that petitioner is not barred from seeking expungement because she, too, was convicted of possession with intent to distribute and not the actual distribution of cocaine. But that reading of D.A.C. goes beyond the holding of the Appellate Division, and it would eviscerate part of the expungement statute. All convictions for possession with intent to distribute are not outside the terms of N.J.S.A. 2C:52-2(c) and therefore eligible for expungement. Although the expungement statute refers to the crime of possession with intent to sell,...