In re Criminal Records of R.Z.

• Decision Date: 28 January 2013
• Citation: 429 N.J.Super. 295,58 A.3d 1178
• Parties: In the Matter of the Expungement of the CRIMINAL RECORDS OF R.Z.
• Court: New Jersey Superior Court

429 N.J.Super. 295

58 A.3d 1178

In the Matter of the Expungement of the CRIMINAL RECORDS OF R.Z.

Superior Court of New Jersey,

Appellate Division.

Argued Nov. 27, 2012.

Decided Jan. 28, 2013.

Ian D. Brater, Special Deputy Attorney General/ Acting Assistant Prosecutor, argued the cause for appellant (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Mr. Brater, of counsel and on the brief).

Daniel G. Giaquinto, Bridgewater, argued the cause for respondent (Kern Augustine Conroy & Schoppmann, P.C., attorneys; Mr. Giaquinto, of counsel and on the brief).

Before Judges MESSANO, OSTRER and KENNEDY.¹

The opinion of the court was delivered by

OSTRER, J.A.D.

The State appeals from the trial court's April 2, 2012 order expunging R.Z.'s April 30, 1999 judgment of conviction for second-degree theft by deception, N.J.S.A. 2C:20–4, and second-degree financial facilitation of criminal activity, known commonly as money laundering. N.J.S.A. 2C:21–25. The State argues the court erred because N.J.S.A. 2C:52–2(a) precludes expungement if the petitioner has been “convicted of any prior or subsequent crime,” and R.Z.'s theft preceded the separate money laundering offense. Petitioner argues the two offenses should be treated as a single crime because they occurred close in time, and involved a single scheme, victim, and judgment of conviction. Because we determine petitioner failed to meet his burden to prove he committed his crimes concurrently, and not on “separate occasions,” In re Ross, 400 N.J.Super. 117, 122, 946 A.2d 86 (App.Div.2008), we reverse and remand for proceedings consistent with this opinion.

I.

R.Z. and several other individuals and corporations were indicted by a State Grand Jury in September 1997 and charged with various crimes involving the Medicaid program. On December 23, 1998, R.Z. entered a plea to two counts of the indictment as part of an agreement in which the State promised to recommend concurrent sentences of six years, a fine of $5,000 on each count, and restitution of $50,500.

Defendant pled guilty to count fifteen, which charged that he committed theft “between on or about August 26, 1995 and ... December 22, 1995” in Paterson, Manalapan Township and elsewhere. Specifically, it was charged he

did obtain Medical Assistance payments under the New Jersey Medical Assistance and Health Services Act, (N.J.S.A. 30:4D–1 et seq.), in an amount in excess of $75,000, by submitting claims which created or reinforced the false impression that certain laboratory tests ... had been ordered by a physician and were performed on blood supplied by the Medicaid recipient who was the subject of the claim:

WHEREAS, in truth and fact, as ... [R.Z.] well knew, the laboratory tests ... had not been ordered by a physician and were not performed on blood supplied by the Medicaid recipient who was the subject of the claim, contrary to the provisions of N.J.S.A. 2C:20–4, N.J.S.A. 2C:2–6, N.J.S.A. 2C:2–7, N.J.S.A. 2C:5–1[.]

Defendant also pled guilty to count sixteen, which charged he committed money laundering during a narrower time frame, “between on or about September 6, 1995 and ... December 16, 1995,” in Manalapan Township and elsewhere. Specifically, the indictment charged defendant

did commit the offense of financial facilitation of criminal activity (money laundering), in that [he] did engage in transactions involving property known to be derived from criminal activity, as set forth in Counts Thirteen, Fourteen and Fifteen of this indictment, ... knowing that the transactions were designed in whole or in part to conceal or disguise the nature, location, source, ownership or control of the property derived from criminal activity, that is Mohammad Javid, United Diagnostics Laboratories, Inc., and United Clinical Laboratory, Inc. did make payments to Astro Supply Company and Arshad Khan in the approximate amounts of $761,834.76 and $39,876.00, respectively, and did so in a manner designed to conceal or disguise the nature, location, source, ownership or control of the money because neither [R.Z.] nor Arshad Khan, t/a Astro Supply Company, supplied any goods or performed any services to warrant said payments, contrary to the provisions of N.J.S.A. 2C:21–25b, N.J.S.A. 2C:2–6, and N.J.S.A. 2C:2–7[.]

In his allocution, defendant admitted that he was a manager of medical offices in Paterson for co-defendants Mohammad Javid and Arshad Khan. He stated he oversaw lab work sent to United Diagnostic Laboratories (United Diagnostic), a corporate defendant, and would bill Medicaid. He responded affirmatively when asked if he were aware “that forms or paper work that were being submitted to the lab were fraudulent[.]”

He explained, “Well, the lab—there used to be a patient—the Medicaid ID numbers. And they were just put on the lab forms. And blood was drawn either from patients or came from people that would sell blood and be submitted to United Diagnostics Laboratory.” When asked what compensation he received “for working at the clinics,” defendant stated he received two checks, “[t]he amount of 50,500, approximately, October of '95. And I used that to purchase a car.”

Specifically regarding the money laundering count, he agreed he received the two checks totaling $50,500 from United Clinical Laboratory (United Clinical). United Clinical was also a corporate defendant distinct from United Diagnostics. He agreed the checks were drawn by Javid to a blank payee, and petitioner used them to purchase a Toyota Land Cruiser from Parkway Toyota. He agreed that he “knew that those two checks represented money that was fraudulently obtained from the Medicaid program.”He also agreed that “in addition to that [the $50,500 transaction], whether [he] received anything extra or not, [he] participated with Mr. Khan and Mr. Javid in laundering money; that is, attempting to hide the location of the money that was taken from the Medicaid program through other various means.”

At petitioner's sentencing on April 30, 1999, the prosecutor asserted that petitioner and Khan, who was a fugitive, had received over $730,000 in kickbacks over three months from Javid. The prosecutor described petitioner as “one of the spokes of the conspiracy. He wasn't the hub, but within his spoke he was clearly one of the central players.”

As noted, petitioner did not expressly admit in his allocution the total magnitude of the fraud, nor its time period, other than to state he received the $50,500 in checks in October 1995.² Defense counsel, in arguing for a five-year period of incarceration, asserted petitioner was the “most insignificant player of everyone in this situation,” and asserted “[t]he evidence that was produced by the Prosecution in this case shows at best he received payment for a vehicle[.]” He also asserted that petitioner provided early and meaningful assistance to State and federal investigators.

The court imposed a sentence in accord with the plea agreement: concurrent six-year terms on each count, fines of $5,000 for each count, and an order to pay restitutionof $50,500 to the State. On the State's motion, the court dismissed the remaining three counts against defendant, charging second degree conspiracy, N.J.S.A. 2C:5–2 (count one); and third degree Medicaid fraud, N.J.S.A. 30:4D–17(c), N.J.S.A. 2C:2–6, –7 (counts thirteen and fourteen). Defendant began serving his term of incarceration immediately, was released to the Intensive Supervision Program (ISP) on April 26, 2000, and discharged from ISP on October 17, 2001.

On September 28, 2011, R.Z. filed a verified petition for expungement. ³ The Monmouth County Prosecutor filed an objection to the petition. ⁴

After oral argument, the court granted the petition, and entered an order expunging the records of the convictions and the dismissed charges. In a written decision, the court rejected the State's argument that petitioner was convicted of a “prior or subsequent crime,” N.J.S.A. 2C:52–2(a), and that pursuant to the statute and Ross, supra, petitioner was barred from obtaining expungement. The court held petitioner's two crimes were part of “an ongoing criminal scheme,” noting the time frame, September 6 to December 16, 1995, alleged in the indictment for the money laundering offense, was “subsumed” within the alleged range for the theft, of August 26 to December 22, 1995.

The State appeals and renews its argument that expungement is barred by the statute and Ross.

II.

The appeal requires us to consider the meaning of N.J.S.A. 2C:52–2(a), which permits expungement of an indictable conviction only if the petitioner “has not been convicted of any prior or subsequent crime[.]” We must also determine who bears the burden to prove the absence of a prior or subsequent crime. Those are legal issues we consider de novo. Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378, 658 A.2d 1230 (1995).

We construed the statute in Ross. In determining whether petitioner has been convicted of a “prior or subsequent crime,” we held a court must look to the date the crimes were committed, as opposed to the date of plea or conviction. Ross, supra, 400 N.J.Super. at 121, 946 A.2d 86. Viewing the statutory language as clear and unambiguous, we held, “if two crimes are committed on separate occasions, they are precluded from expungement regardless of whether the two crimes carry a single sentencing date and therefore a single date of conviction.” Id. at 122, 946 A.2d 86.

We compared the current statute with its predecessor, which barred expungement of a “subsequent conviction,” as opposed to a “subsequent crime,” and concluded the Legislature intended to narrow eligibility for expungement. Ibid. (comparing N.J.S.A. 2C:52–2 with N.J.S.A. 2A:164–28 (repealed 1978)). We observed the current law precluded the result we reached under the prior law in In re Fontana, 146 N.J.Super. 264, 369 A.2d 935 (App.Div.1976), where we permitted expungement of numerous burglaries and thefts...