In re J.S., INDICTMENT NO. 12-06-00713

• Decision Date: 23 April 2019
• Docket Number: INDICTMENT NO. 12-06-00713
• Parties: In the MATTER OF the Expungement of J.S.
• Court: New Jersey Superior Court

460 N.J.Super. 507

216 A.3d 1001

In the MATTER OF the Expungement of J.S.

INDICTMENT NO. 12-06-00713

Superior Court of New Jersey, Law Division, Gloucester County. Criminal Part.

Decided: April 23, 2019

Frank P. Trosky, Assistant Deputy Public Defender, for petitioner (Joseph E. Krakora, Public Defender, attorney).

Rex E. Utuk, Assistant Prosecutor, for respondent (Charles A. Fiore, Gloucester County Prosecutor, attorney).

EASTLACK, J.S.C.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Petitioner, J.S., was arrested for and charged with various criminal offenses arising out of an incident which occurred on March 6, 2012. A negotiated plea agreement was reached wherein J.S. pled guilty to two charges: second degree eluding in violation of N.J.S.A. 2C:29-2(b) and third degree possession of CDS in violation of N.J.S.A. 2C:35-10A(1). He was sentenced into the Vicinage XV Drug Court Program for a term of special probation, not to exceed five years, on April 24, 2013. During his term on special probation, petitioner was arrested in Philadelphia, Pennsylvania and charged with driving under the influence (DUI) on September 19, 2014, on Complaint No. VC-3802. J.S. was convicted of this charge on January 3, 2017. Under Pennsylvania law, this DUI charge is graded as a misdemeanor-level crime.

After this setback, J.S. was able to successfully move through the four phases of the drug court program; completed the court ordered treatment plan; obtained and maintained employment; and graduated from the program on October 23, 2018. He subsequently moved to have his record expunged pursuant to N.J.S.A. 2C:35-14(m) of the drug court statute. The Office of the Gloucester County Prosecutor opposed this petition for expungement on the basis that petitioner had been charged and convicted of a crime in the Commonwealth of Pennsylvania while a participant in the drug court program.

ANALYSIS

This case presents an issue of first impression: whether an out of state conviction for an offense classified as a crime in a foreign jurisdiction acts as a bar to an expungement petition of a successful graduate from the drug court program, when that same offense is classified as a motor vehicle offense in New Jersey.

N.J.S.A. 2C:35-14 sets forth the rigorous requirements of the New Jersey Drug Court Program. The New Jersey Legislature amended the statute in 2016 to provide for the expungement of all criminal records of successful drug court graduates. That statute states, in pertinent part, as follows:

The Superior Court may order the expungement of all records and information relating to all prior arrests, detentions, convictions, and proceedings for any offense enumerated in Title 2C of the New Jersey Statutes upon successful discharge from a term of special probation as provided in this section, regardless of whether the person was sentenced to special probation under this section, section 2 of P.L. 2012, c. 23 (C.2C35-14.2) or N.J.S. 2C:45-1, if the person satisfactorily completed a substance abuse treatment program as ordered by the court and was not convicted of any crime, or adjudged a disorderly person or petty disorderly person, during the term of special probation.... The court shall grant the relief requested unless it finds that the need for the availability of the records outweighs the desirability of having the person freed from any disabilities associated with their availability, or it finds that the person is otherwise ineligible for expungement pursuant to paragraph (2) of this subsection. An expungement under this paragraph shall proceed in accordance with rules and procedures developed by the Supreme Court.

[ N.J.S.A. 2C:35-14(m)(1) (emphasis added).]

Subsection (m)(2) sets forth exclusions from expungement which are not relevant to this analysis.

The courts of the State of New Jersey have recognized the benefits and successes of the drug court program. "Drug Courts are specialized courts within the Superior Court that target drug-involved ‘offenders who are most likely to benefit from treatment and do not pose a risk to public safety.’ " State v. Meyer, 192 N.J. 421, 428, 930 A.2d 428 (2007) (quoting Administrative Office of the Courts, Manual for Operation of Adult Drug Courts in New Jersey (July 2002)). As stated in Meyer:

[Drug] courts address the seemingly intractable social problem presented by the scourge of drugs that has devastated countless families and is the source of so many collateral crimes. What distinguishes Drug Courts from other courts is the "oversight and personal involvement of the drug court judge in the treatment process." A team approach is a distinctive feature of Drug Court. The judge leads court staff, probation officers, treatment counselors, substance abuse evaluators, and the prosecutor and defense attorney to monitor a participant's recovery. Participants in drug court programs are subject to intensive supervision, frequent drug testing, and regular court appearances, combined with treatment and recovery services.

[ Id. at 429, 930 A.2d 428 (citations omitted).]

The Court in Meyer went on to analyze the achievements of drug court programs as of the date of that opinion noting achievements in recidivism, employment, drug free pregnancy, and the regaining of child custody by successful graduates in addition to the great cost savings that drug courts provide as an alternate to incarceration. The value of the drug court system was recently reaffirmed by the Supreme Court in In re Expungement of the Arrest/Charge Records of T.B., 236 N.J. 262, 199 A.3d 744 (2019). There, the Supreme Court stated as follows:

With the strong support of all three branches of government, the court system has operated a drug court program for more than two decades.

....

Drug court is designed to rid participants of drug dependency, help them develop skills and get job experience, encourage them to continue their education, and equip them to advance in other ways. At its core, the program tries to keep participants drug free and empower them to lead productive lives.

According to the Administrative Office of the Courts, more than 5400 individuals have successfully completed drug court since 2002, when the program went operational statewide. Administrative Office of the Courts, New Jersey Adult Drug Court Program: New Jersey Statistical Highlights (Aug. 6, 2018), https://www.njcourts.gov/courts/assets/criminal/njstats.pdf. Nine out of ten participants are employed when they graduate. Ibid. Two out of three have a driver's license at graduation. Ibid. More than half have medical benefits. Ibid. And participants must have clean drug tests for one continuous year to be able to graduate.

[ T.B., 236 N.J. at 265, 199 A.3d 744.]

In T.B., the Court analyzed three consolidated appeals regarding the issue of whether or not expungements should be afforded to successful drug court graduates who had been convicted of certain third or fourth degree offenses related to the sale and distribution of CDS. While the Court found that the language of the expungement law, N.J.S.A. 2C:35-14(m)(1) "requires judges to determine whether expungement would be consistent with the public interest," the Court found that, "successful graduates who have committed certain offenses and apply for expungement are entitled to a rebuttable presumption that expungement is consistent with the public interest."

T.B., 236 N.J. at 266, 199 A.3d 744. The Court in T.B. also recognized that the 2016 amendment to the drug court statute "favors expungement in a number of ways that go beyond the approach in the general expungement statute." Id. at 275, 199 A.3d 744. The Court identified four important distinctions from the general expungement statute under N.J.S.A. 2C:52-2 :

(1) The drug court expungement statute allows judges to order the expungement of the person's entire criminal record;

(2) It dispenses with the formal application process required by N.J.S.A. 2C:52-7 to -14 and instead directed that expungement proceed under rules and procedures developed by the Supreme Court, which were to be implemented by the Director of the Administrative Office of the Courts;

(3) It states that drug court judges "shall grant" expungement unless the need for the records outweigh the benefits of expungement or if the graduate is otherwise statutorily ineligible; and

(4) It places the burden on the State to not only notify the court of any disqualifying convictions, but "any other factors related to public safety that should be considered by the court." Id. at 275-76, 199 A.3d 744 (citing N.J.S.A. 2C:35-14(m)(2) ).

Noting that the "expungement statute tends to favor expungement for successful graduates," id. at 277, 199 A.3d 744, the Court held as follows:

In light of the rigorous monitoring that is the hallmark of drug court, as well as the new law's overall policy in favor of expungement for successful graduates, we find that participants are entitled to a rebuttable presumption that expungement is consistent with the public interest. As an integral part of the drug court team, prosecutors may draw on their knowledge of an applicant's character and conduct after conviction, as well as other information, to try to rebut the presumption. That approach dovetails with the obligation imposed on prosecutors "to notify the court of ... factors related to public safety that should be considered by the court when deciding to grant an expungement."

[ Id. at 278-79, 199 A.3d 744 (quoting N.J.S.A. 2C:35-14(m)(2) ).]

It is with this background of the recognized value of the drug court program, the rigors of the program's requirements, and favorability of the expungement process to successful and eligible drug court graduates that this court views the petition for expungement of graduate, J.S. Here the prosecutor, as required by the statute, advised the court of its opposition to the petition due to petitioner's conviction of DUI in Pennsylvania on January 3, 2017. As specifically stated in subsection (m)(1)...