IN RE PETITION FOR EXPUNGEMENT OF RECORDS OF DAC

• Citation: 767 A.2d 976,337 NJ Super. 493
• Parties: IMO Petition for Expungement of Records of D.A.C., D.A.C., Petitioner-Appellant, v. State of New Jersey, Respondent-Respondent.
• Decision Date: 28 February 2001
• Court: New Jersey Superior Court

767 A.2d 976

337 NJ Super. 493

IMO Petition for Expungement of Records of D.A.C., D.A.C., Petitioner-Appellant, v. State of New Jersey, Respondent-Respondent.

Superior Court of New Jersey, Appellate Division.

Argued February 6, 2001.

Decided February 28, 2001.

Richard S. Lehrich, Cranford, argued the cause for petitioner.

Jessica Gomperts, Assistant Bergen County Prosecutor, argued the cause for respondent (William H. Schmidt, Bergen County Prosecutor, attorney; Joseph Glebocki, Jr., Assistant Bergen County Prosecutor, of counsel and on the brief).

Before Judges PRESSLER, CIANCIA and ALLEY.

The opinion of the court was delivered by ALLEY, J.A.D.

D.A.C. appeals from an order entered January 13, 2000, to the extent it denied his petition for expungement of the following information, records, and judgment of conviction: his arrest on April 22, 1980, by the Bergen County Narcotics Task Force and his indictment pursuant to Bergen County Indictment S-229-81 for distribution of LSD, possession of LSD, and conspiracy to distribute a controlled dangerous substance, and his judgment of conviction on November 20, 1981, pursuant to his plea of guilty, of the charge of distribution of LSD, N.J.S.A. 24:21-19(a)(1).¹

The expungement statute, N.J.S.A. 2C:52-2a, provides 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.

[Emphasis added.]

One of the statutory exceptions to eligibility for expungement is set forth in N.J.S.A. 2C:52-2c:

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....²

In this appeal, we must decide whether a person convicted as an accomplice of an offense specified in N.J.S.A. 2C:52-2c is eligible to obtain expungement even though the principal in the commission of the same crime would not be eligible.

The arrest respecting the LSD charges occurred when petitioner was 23 years old. Following his plea of guilty to the charge of distribution of LSD, the court sentenced petitioner to a two-year term of probation, and the indictment's remaining charges against him were dismissed on the State's motion. Petitioner claims that since his last involvement with the courts he has attained a degree of Bachelor of Arts in Public Administration, consistently held responsible employment, and led an exemplary life.

Petitioner also contends that his role in the LSD distribution was that of an accomplice rather than of a principal. Many of the case records appear to be no longer available, and although petitioner buttresses his assertion of accomplice status with several arguments, the plain fact is that the gap in the record made available to us is too large and there is no entirely convincing proof either way. For purposes of this opinion, however, we will extend to petitioner the benefit of the doubt and assume in the course of our analysis that he was indeed an accomplice, and this takes us to the core issue in the appeal.

The Law Division judge who decided the petition was persuaded that the statutory bar in CDS distribution cases against eligibility for expungement, N.J.S.A. 2C:52-2c, applies equally to principals and accomplices. Accordingly, he considered petitioner ineligible for expungement respecting the LSD distribution conviction and denied the petition. We agree that this conclusion was correct. We thus hold that that statutory bar applies to alleged accomplices such as petitioner, as well as to principals, and we overrule the contrary decision in Application of R.C., 292 N.J.Super. 151, 678 A.2d 339 (Law Div. 1996).

It is well-established in New Jersey law that distinctions between the culpability and punishment of a principal and accomplice have been abolished, and that an accomplice has equal culpability and is subject to the same punishment as a principal in the crime's commission. State v. Gerald, 113 N.J. 40, 93, 549 A.2d 792 (1988); State v. Bram, 246 N.J.Super. 200, 208, 586 A.2d 1366 (Law Div.1990). See also State v. Mancine, 124 N.J. 232, 259-60, 590 A.2d 1107 (1991)

; State v. Weeks, 107 N.J. 396, 400, 526 A.2d 1077 (1987); State v. Cooper, 10 N.J. 532, 92 A.2d 786 (1952).³ Indeed, for an accomplice to be convicted of the same crime as the principal, each must be determined to have had the same mental state. State v. Bielkiewicz, 267 N.J.Super. 520, 527, 632 A.2d 277 (App.Div.1993). There is no separate crime of complicity in New Jersey. State v. Bram, supra, 246 N.J.Super. 200, at 208, 586 A.2d 1366.

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.

Finally, we note the following in connection with Application of R.C., 292 N.J.Super. 151, 678 A.2d 339, supra, which we overrule in this opinion because it is inconsistent with the rationale in this case. There, the court referred to the portions of N.J.S.A. 2C:52-2b that bar expungement not only for committing certain specified offenses but also for aiding and assisting the commission of those offenses, and it observed that there is no corresponding language in N.J.S.A. 2C:52-2c that bars expungement for complicity in the offenses specified therein. The court inferred therefrom a legislative intent not to bar expungement for crimes of complicity under N.J.S.A. 2C:52-2c because in that paragraph the statute has not expressly named crimes of complicity.

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