State v. DeMarco

• Decision Date: 19 May 1980
• Citation: 416 A.2d 949,174 N.J.Super. 411
• Parties: STATE of New Jersey, Plaintiff, v. Richard DeMARCO et al., Defendants.
• Court: New Jersey Superior Court

Page 411

174 N.J.Super. 411

416 A.2d 949

STATE of New Jersey, Plaintiff, v. Richard DeMARCO et al., Defendants.

Superior Court of New Jersey, Law Division,

Passaic County.

Decided May 19, 1980.

Keith Von Glahn, Asst. County Prosecutor, for plaintiff State of N. J. (Joseph Falcone, Sp. Deputy Atty. Gen., Acting Passaic County Prosecutor, attorney).

Philip M. Saginario, Paterson, for defendant.

ALTERMAN, J. S. C.

Defendant petitions to expunge a disorderly persons conviction. On December 26, 1968, defendant was found guilty of a disorderly persons offense in Little Falls, Passaic County. On July 9, 1979, he was acquitted on an indictment tried in Hudson County. Simultaneously with the filing of this petition in Passaic County, defendant filed a petition in Hudson County to expunge the record of the criminal proceedings. See N.J.S.A. 2C:52-3; 2C:52-5. Neither petition contains any reference to the proceedings in the other county. Is this petition deficient because it fails to reveal defendant's subsequent acquittal?

N.J.S.A. 2C:52-7, provides:

Every petition for expungement filed pursuant to this chapter shall be verified and include:

a. Petitioner's date of birth.

b. Petitioner's date of arrest.

c. The statute or statutes and offense or offenses for which petitioner was arrested and of which petitioner was convicted.

d. The original indictment, summons or complaint number.

e. Petitioner's date of conviction, or date of disposition of the matter if no conviction resulted.

f. The court's disposition of the matter and the punishment imposed, if any.

Defendant contends that subparagraph c requires the recitation only of charges which resulted in conviction. Subparagraph c cannot be interpreted in that fashion. The Legislature is presumed to know the rules of grammar, United States v. Goldenberg, 168 U.S. 95, 102, 18 S.Ct. 3, 4, 42 L.Ed. 394 (1897). The subsection contained two relative clauses used adjectively: "for which petitioner was arrested" and "of which petitioner was convicted." These clauses modify the topic "statute or statutes and offense or offenses." The topic of subparagraph c is not, as defendant urges "statute or statutes and offense or offenses for which petitioner was arrested." Because the two relative clauses are connected by the conjunctive, they are grammatically parallel and should be given equal effect.

Furthermore, every clause of a statute should, if possible, be given full force and effect, Cobb v. Waddington, 154 N.J.Super. 11, 17, 380 A.2d 1145 (App.Div.1977), and a construction that makes part of a statute superfluous, inoperative or meaningless, should be avoided. Hoffman v. Hock, 8 N.J. 397, 406, 86 A.2d 121 (1952). If subparagraph c is read to require a recitation of only those statutes and offenses resulting in conviction, the first relative clause, "for which petitioner was arrested," is superfluous. Additionally, subsection e, which requires the petition to include the "date of disposition of the matter if no conviction resulted," clearly demonstrates that the statute encompasses arrests not resulting in conviction.

Since an arrest not resulting in a conviction, as well as a conviction, may be expunged, it is conceivable that subparagraph c relates to only the arrest or conviction which is the subject of the petition. Under that interpretation, the statute would merely require the recital of either the arrest or the conviction. Subparagraphs e and f are not inconsistent with that interpretation because each may be applied to either an acquittal or a conviction.

Indulging this interpretation, however, requires the conjunctive "and" in subparagraph c to be construed as the disjunctive "or." Although the conjunctive and the disjunctive particles may be used interchangeably, the exchange is permissible only where it is consistent with the legislative intent. Howard v. Harwoods Restaurant Co., 25 N.J. 72, 88, 135 A.2d 161 (1957). It is not appropriate to do so here, for other sections in the expungement chapter of the Code manifest an intent that the petition must set forth every criminal or quasi -criminal charge made against the defendant, whether resulting in acquittal or conviction.

N.J.S.A. 2C:52-7 cannot be construed in a vacuum. The meaning of particular language must be gleaned not alone from the words used within the confines of a particular statutory section involved, but from those words when read in connection with the entire enactment of which it is an integral part. Petition of Sheffield Farms Co., 22 N.J. 548, 554, 126 A.2d 886 (1956).

Under this chapter, a petitioner may not qualify for expungement if he has been convicted of any prior or subsequent crime or been adjudged a disorderly person or petty disorderly person on more than two occasions. N.J.S.A. 2C:52-5; 2C:52-3; 2C:52-4. If a criminal conviction is sought to be expunged, subsequent convictions of no more than two disorderly or petty disorderly persons offenses will not necessarily bar relief, but "the nature of those conviction or (sic ) convictions and the circumstances surrounding them shall be considered by the court . . . ." N.J.S.A. 2C:52-2 a. It is apparent that the court cannot know whether the statutory qualifications are satisfied and cannot consider the nature of the disorderly persons or petty disorderly persons offenses unless every crime and offense is revealed in the petition. If, at the time of the petition, charges were pending against the petitioner or there is some other statutory disqualification, ...