In re J.S.

• Decision Date: 10 August 2015
• Docket Number: A-84 September Term 2013, 073376, A-2 September Term 2014, 074541
• Parties: In the Matter of the Expungement Petition of J.S. In the Matter of the Expungement of the Criminal Records of G.P.B.
• Court: New Jersey Supreme Court

223 N.J. 54

121 A.3d 322

In the Matter of the Expungement Petition of J.S. In the Matter of the Expungement of the Criminal Records of G.P.B.

A-84 September Term 2013, 073376, A-2 September Term 2014, 074541

Supreme Court of New Jersey.

Argued March 2, 2015.

Decided Aug. 10, 2015.

Mark P. Stalford, Freehold, argued the cause for appellant J.S.Gerald Krovatin, Newark, argued the cause for appellant G.P.B. (Krovatin Klingeman, attorneys; Mr. Krovatin and Ernesto Cerimele, Whippany, on the brief).

Ian D. Brater, Special Deputy Attorney General Acting Assistant Prosecutor, argued the cause for respondent State of New Jersey (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney).

Kelly Anne Shelton, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Richard T. Burke, Warren County Prosecutor, attorney).

Opinion

Justice PATTERSON delivered the opinion of the Court.

These appeals present a question of statutory interpretation. The Court construes N.J.S.A. 2C:52–2(a), a component of the statutory scheme that authorizes the expungement of the records of certain criminal convictions under conditions established by the Legislature. That provision permits the expungement of a conviction for certain indictable offenses if the petitioner “has been convicted of a crime ... and ... has not been convicted of any prior or subsequent crime[.]” N.J.S.A. 2C:52–2(a). The Court determines whether the statutory language bars expungement of the convictions of a defendant who pleads guilty in a single proceeding to multiple offenses that were committed within a short period of time.

Petitioner J.S. pled guilty to two drug offenses committed within five days of one another. Petitioner G.P.B. pled guilty to four offenses arising from his attempt, in several communications over a two-day period, to offer political contributions to public officials in exchange for an award of public contracts or a negative vote on a municipal resolution. After serving their sentences, both petitioners sought expungement of their criminal records. In each proceeding, the trial court granted the expungement petition, reasoning that each petitioner's closely-related offenses constituted a single “crime” within the meaning of N.J.S.A. 2C:52–2(a). In each case, an appellate panel reversed the trial court's determination, construing N.J.S.A. 2C:52–2(a) to bar expungement when the petitioner committed multiple offenses on separate occasions, even when those offenses occurred in quick succession.

We affirm the Appellate Division's decisions in both appeals. We construe the plain language of N.J.S.A. 2C:52–2(a) to preclude expungement when the petitioner has been convicted of multiple crimes, even when those crimes occurred within a short span of time. Our interpretation of N.J.S.A. 2C:52–2(a) is supported by the Legislature's decision to amend the statute following an Appellate Division decision that permitted expungement of multiple convictions arising from a short-term “spree” of offenses. We conclude that, as it is currently drafted, N.J.S.A. 2C:52–2(a) does not authorize expungement of the criminal records of individuals who are in the position of petitioners. If the Legislature determines that expungement should be available to such individuals, it can amend the statute to clarify its intent in that regard.

I.

A.

J.S. is a thirty-four-year-old former New Jersey resident, who now lives in Florida. Before moving, he worked as a manager in the health care field. In June 2000, when J.S. was a sophomore at Kean University, he was arrested after twice selling marijuana to an undercover police officer during a five-day period. The first sale occurred on June 16, 2001, and involved 25.2 grams of marijuana. The second sale occurred on June 21, 2001, and involved 100 grams of marijuana.¹

J.S. was arrested and charged with a total of nine offenses: one count of second-degree distribution of a controlled dangerous substance (CDS) while on or within five hundred feet of a public park, N.J.S.A. 2C:35–7.1(a) ; two counts of third-degree possession of a CDS with intent to distribute while on or within 500 feet of a public park, N.J.S.A. 2C:35–7.1(a) ; one count of third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35–5(b)(11) ; one count of third-degree distribution of a CDS, N.J.S.A. 2C:35–5(b)(11) ; one count of third-degree distribution of a CDS while on or within 500 feet of a public park, N.J.S.A. 2C:35–7.1(a) ; one count of fourth-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35–5(b)(12) ; one count of fourth-degree distribution of a CDS, N.J.S.A. 2C:35–5(b)(12) ; and one count of fourth-degree possession of a CDS, N.J.S.A. 2C:35–10(a)(3). J.S. was also issued a summons charging him with two counts of disorderly persons marijuana possession, N.J.S.A. 2C:35–10(a)(4). Four of the charges arose from J.S.'s sale of marijuana on June 16, 2001, and the remaining five charges arose from J.S.'s sale of marijuana on June 21, 2000.

On May 29, 2001, J.S. pled guilty to a fourth-degree distribution charge, arising from his June 16, 2001 sale of marijuana, and to a third-degree distribution charge, arising from his June 21, 2000 sale of marijuana. Thus, J.S.'s convictions arose from two drug distribution offenses that involved small quantities of marijuana and occurred five days apart. J.S. was sentenced to a three-year term of noncustodial probation. He completed his sentence on February 8, 2007, and has paid the fees assessed by the sentencing court.

Five years after completing his sentence, J.S. filed the expungement petition that is the subject of this appeal. He stated in his supporting affidavit that he was interested in pursuing a nursing degree, but had not yet applied to nursing school because he anticipated that his criminal record would bar a career in nursing. The State opposed the petition, arguing that J.S. was not eligible for expungement because his convictions arose from two offenses committed five days apart.

The trial court held a hearing and granted J.S.'s expungement petition. It reasoned that J.S.'s two offenses constituted a “single spree,” and that under the Appellate Division's decision in In re Fontana, 146 N.J.Super. 264, 267, 369 A. 2d 935 (App.Div.1976), those offenses constituted a solitary “crime.” The trial court concluded that J.S. had no conviction for a “prior or subsequent crime” for purposes of N.J.S.A. 2C:52–2(a).

Because only five years had passed since the completion of J.S.'s sentence of probation, he was ineligible for expungement under the original version of N.J.S.A. 2C:52–2(a), which mandates a ten-year period before an offender may seek expungement. Instead, the trial court granted J.S.'s petition under two provisions added to the statute in a 2010 amendment. See L. 2009, c. 188. The court found that J.S. satisfied the “public interest” prong of N.J.S.A. 2C:52–2(a)(2), which requires “the passage of five years[,] no additional convictions [,] and a finding that expungement is in the public interest,” In re Kollman, 210 N.J. 557, 571, 46 A. 3d 1247 (2012). The trial court also relied on

N.J.S.A. 2C:52–2(c),

which permits expungement of a conviction for the sale of twenty-five grams of marijuana or less despite the general bar on expungement of convictions “for the sale or distribution of a [CDS] or possession thereof with intent to sell[.]” N.J.S.A. 2C:52–2(c)(1). The court ordered that J.S.'s criminal record be expunged, subject to limitations and exceptions set forth in the expungement statute, N.J.S.A. 2C:52–1 to –32.

The State appealed. In an unpublished opinion, the Appellate Division reversed the trial court's order of expungement. The panel held that the trial court had improperly relied on Fontana, supra, 146 N.J.Super. at 267, 369 A. 2d 935, because Fontana applied an earlier version of the expungement statute, N.J.S.A. 2A:164–28, containing language distinct from that of N.J.S.A. 2C:52–2(a). Instead, the panel adopted the reasoning of another appellate panel, applying the current expungement statute and rejecting the “one-night spree” concept. See In re Ross, 400 N.J.Super. 117, 123, 946 A. 2d 86 (App.Div.2008). Deeming the statutory text clear and unambiguous, the panel held that J.S.'s two offenses were “prior or subsequent” to one another, thus barring expungement in his case.

We granted certification. 217 N.J. 304, 88 A. 3d 936 (2014).

B.

Petitioner G.P.B. is a fifty-two-year-old New Jersey resident. He owns an environmental planning and land development consulting company. On April 19 and 20, 1999, G.P.B. committed several offenses in support of a scheme to offer illegal gifts to local officials in a particular municipality, in order to obtain a public contract for his business and a specific vote on a municipal resolution.

On April 19, 1999, G.P.B. and another individual had several conversations in furtherance of a conspiracy to carry out this scheme. G.P.B. and his co-conspirator spoke by telephone with the town's mayor, and offered him a $24,000 contribution to his county political party. In exchange, the mayor was asked to select G.P.B.'s company for several public contracts. In the alternative, G.P.B. and his co-conspirator offered the mayor a $10,000 contribution in exchange for selecting the company for all but one of the municipal contracts.

The same day, G.P.B. and his co-conspirator spoke by telephone in separate conversations with two members of the town council in the same municipality. G.P.B. offered each of the council members a $5000 campaign contribution in exchange for a negative vote on a municipal resolution, which would have awarded a contract to a competing business. The resolution was scheduled to be voted on the following day.

On April 20, 1999, the day of the scheduled vote, G.P.B. advised at least one of the council members that he would be provided with part of the money in advance of the vote. One of the officials contacted the...