State v. H.G.G.

Decision Date24 June 1985
Citation202 N.J.Super. 267,494 A.2d 841
PartiesSTATE of New Jersey, Plaintiff-Appellant, v. H.G.G., Defendant-Respondent.
CourtNew Jersey Superior Court — Appellate Division

Irwin I. Kimmelman, Atty. Gen. of New Jersey, for plaintiff-appellant (Stephen H. Monson, Deputy Atty. Gen., of counsel and on brief).

Charles J. Sakany, Hackensack, for defendant-respondent.

Before Judges MATTHEWS, FURMAN and HAVEY.

The opinion of the court was delivered by

MATTHEWS, P.J.A.D.

The State appeals from an order of the Law Division expunging the arrest and conviction record of H.G.G. for a 1969 conviction of conspiracy to possess, process and manufacture narcotics in violation of N.J.S.A. 2A:8-2.

Petitioner was arrested on October 11, 1968 and charged with conspiracy, contrary to the provisions of N.J.S.A. 2A:85-1 and conspiracy to possess narcotics, contrary to the provisions of N.J.S.A. 2A:98-2. Subsequently in June of 1969, a Bergen County Grand Jury returned an indictment on the charges of which petitioner was subsequently found guilty.

On November 1, 1973, petitioner was arrested and charged with fraud contrary to the provisions of N.J.S.A. 2A:111-15. Entering a plea of not guilty, petitioner was later found guilty of the offense as charged.

Nine years later, on February 9, 1984, petitioner submitted a verified petition pursuant to N.J.S.A. 2C:52-7 and 8, seeking to expunge the 1969 conviction for conspiracy. The petition, however, failed to comply with the provisions of N.J.S.A. 2C:52-7 and the holding in State v. DeMarco, 174 N.J.Super. 411, 416 A.2d 949 (Law Div.1980), in that petitioner set forth that he had never been convicted of any offense other than the conspiracy offense. Numerous arrests and charges occurring in New York and New Jersey also went unreported in the petition. N.J.S.A. 2C:52-7 sets forth the essential elements of an expungement petition:

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. [Emphasis added.]

Although H.G.G.'s petition clearly falls short of these requirements, its inadequacy was neither addressed below nor raised on appeal.

The State Bureau of Identification (S.B.I.) in the Division of State Police objected to the expungement, citing a statutory basis for a denial. Specifically, the S.B.I. relied upon N.J.S.A. 2C:52-2(a) and 2C:52-14(a). According to S.B.I., petitioner, having more than one criminal conviction of record, was ineligible for expungement relief.

At the expungement hearing the State presented certified judgments of conviction in support of its statutory objection. No testimony or evidence was placed before the court by the petitioner to rebut the judgments of conviction which were subsequently received into evidence. Petitioner nevertheless argued that he had only one valid criminal conviction of record and was therefore eligible for expungement relief. Specifically, he claimed that since the State could not produce a written waiver of his right to an indictment and trial by jury, executed by him, the 1973 conviction was invalid and could not be used against him in the expungement proceedings. The State claimed that petitioner did execute a written waiver but was unable to produce it because all trial records of Hackensack Municipal Court are shredded after six years.

The statute under which petitioner was convicted, N.J.S.A. 2A:111-15, expressly classifies a violation as being a misdemeanor, and specifically provides for a penalty of not more than one year imprisonment and/or a fine of not more than $1,000. The code in 2C:1-4(c), classifies a violation of N.J.S.A. 2A:111-15 as a crime. Under N.J.S.A. 2A:8-22(h), a municipal court only has jurisdiction of a N.J.S.A. 2A:111-15 crime if the person charged waives indictment and trial by jury in writing:

Each municipal court, and the magistrate or magistrates thereof, shall have jurisdiction of the following crimes or offenses occurring within the territorial jurisdiction of the court, where the person charged shall in writing waive indictment and trial by jury

* * *

h. Overdrawing credit or checking account.

The trial judge recognized that a literal reading of N.J.S.A. 2C:52-3 would bar the expungement of H.G.G.'s conviction because of his subsequent 1973 conviction in Hackensack Municipal Court of an indictable offense. Nonetheless, the trial judge ignored the explicit language of N.J.S.A. 2C:52-3 and expunged petitioner's arrest and conviction record for the conspiracy conviction, reasoning that the State had failed to prove that petitioner had executed a statutory waiver pursuant to the jurisdictional requirements of N.J.S.A. 2A:8-22(h).

The trial judge, relying solely on the case of State v. R.E.C., 181 N.J.Super. 79, 436 A.2d 573 (Law Div.1981), found the burden to be on the State to prove the conviction's validity:

"State v. REC, 181 N.J.Super. 79 , 'The prosecutor must establish the facts by a preponderance of the evidence to deny expungement. The prosecutor must establish facts from which the Court can conclude the criteria have been established.'

I have nothing further but the presumption that the magistrate did his job, but I don't think I can act on that. In good conscience, how could I presume, even if he had counsel which I don't have in the record of conviction, to advise him of his rights, so I have to give that benefit of the doubt based on this case that you have to come forward by the preponderance of the evidence to establish the objection to the expungement. I have to go with him."

We disagree with the judge's reliance on R.E.C. since that case is clearly distinguishable from that presented here. In R.E.C., a criminal defendant who had been acquitted of charges of aggravated assault, filed a petition for an order expunging the records of his prosecution. The sole issue was the applicability of N.J.S.A. 2C:52-14(b), i.e., whether the need for the record outweighs the purpose of expungement. N.J.S.A. 2C:52-14(b) provides that expungement shall be denied when "the need for the availability of the records outweighs the desirability of having a person freed from any disabilities as otherwise provided in this chapter." An application may be denied under this subsection only following objection of a party given notice pursuant to N.J.S.A. 2C:52-10. The subsection further expressly provides and the trial judge held that the "burden of establishing the factual foundation for the applicability of subsection [14(b) ] to deny expungement rests with the prosecutor as objector." 181 N.J.Super. at 82, 436 A.2d 573. The holding in R.E.C. is applicable in those cases where the State has invoked subsection 14(b) as its statutory objection, 14(b) being the only subsection which mandates an obligation of proof upon the State.

In this case the applicable provision is N.J.S.A. 2C:52-14(a) which provides that a petition for expungement filed pursuant to chapter 52 of the Code shall be denied when "[a]ny statutory prerequisite including any provision of this chapter, is not fulfilled or there is any other statutory basis for denying relief." The State claims that H.G.G. failed to comply with the prerequisites set forth in N.J.S.A. 2C:52-2(a):

a. 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, whether within this State or any other jurisdiction, and has not been adjudged a disorderly person or petty disorderly person on more than two occasions 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 as provided in section 2C:52-7 to the Superior Court in the county in which the conviction was entered praying that such conviction and all records and information pertaining thereto be expunged.

Although subsequent convictions for no more than two disorderly or petty disorderly offenses shall not be an absolute bar to relief, the nature of those conviction or convictions and the circumstances surrounding them shall be considered by the court and may be a basis for denial of relief if they or either of them constitute a continuation of the type of unlawful activity embodied in the criminal conviction for which expungement is sought. [Emphasis added.]

Both subsection 14(a) and subsection 2(a) of chapter 52 are silent as to who must bear the burden of proof when the validity of a prior conviction is disputed.

If the Legislature had intended the burden to be on the State, we think that it would have been expressly stated as was done in subsection 14(b). The proof of conviction required is satisfied by the introduction into evidence of a certified judgment of conviction. The burden is then on the petitioner to prove the conviction's invalidity. A petitioner seeking expungement of a conviction, when his record shows another conviction, must do more than merely allege the conviction's invalidity to put the State to its proofs. He must present at least a prima facie case of invalidity. Otherwise the courts would become bogged down with excessive collateral matters and criminal verdicts would never have any finality.

Petitioner's argument that his 1973 conviction cannot be used to deny his petition for expungement because the conviction is invalid appears to be two faceted. He asserts that the prior conviction...

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