State v. H.J.B.

• Citation: 240 N.J.Super. 216,572 A.2d 1205
• Parties: STATE of New Jersey, Plaintiff, v. H.J.B., Defendant.
• Decision Date: 07 February 1990
• Court: Superior Court of New Jersey

Page 216

240 N.J.Super. 216

572 A.2d 1205

STATE of New Jersey, Plaintiff, v. H.J.B., Defendant.

Superior Court of New Jersey, Law Division,

Passaic County.

Decided Feb. 7, 1990.

Edward M. Agnello, for petitioner (Agnello and Agnello), passaic.

Steven Braun, Asst. Prosecutor, for the State (Ronald S. Fava, Passaic County Prosecutor).

MARTIN, J.S.C.

The issue presented is the expungibility of two disorderly person convictions and one municipal ordinance violation pursuant to N.J.S.A. 2C:52-3 and 52-4 respectively, where there exists a prior foreign jurisdiction disorderly person offense. Specifically, does the foreign disorderly person offense conviction impinge on the permissible number of disorderly person (herein referred to as d.p.) and municipal ordinance (herein referred to as m.o.) convictions which may statutorily be granted.

The record reveals that in 1958 and again in 1963 petitioner was convicted of a d.p., simple assault (N.J.S.A. 2A:170-26) in Passaic, New Jersey. In 1961 petitioner was convicted of a m.o. in Clifton, New Jersey (Ordinance No. 21-4), Loitering While Drunk. ¹ No other convictions have been entered against petitioner in New Jersey. However, in 1957 petitioner was convicted in the State of Florida for malicious mischief. Both the State and petitioner's counsel have agreed that this conviction is the equivalent of a d.p. offense in N.J.

For purposes of this petition the pertinent portions of N.J.S.A. 2C:52-3 and 52-4 provide 52-3: Any person convicted of a disorderly persons offense or petty disorderly persons offense under the law of this State who has not been convicted of any prior or subsequent crime, whether within this state or any other other jurisdiction, or of another three disorderly persons or petty disorderly persons offenses, may after ... a period of 5 years ... present a duly verified petition ... [Emphasis supplied].

52-4: In all cases wherein a person has been found guilty of violating a municipal ordinance of any governmental entity of this state and who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, and who has not been adjudged a disorderly person or petty disorderly person on more than two occasions, may after ... a period of 2 years ... present a duly verified petition ... [Emphasis supplied]. ²

It is the State's position that the Court, pursuant to the language of 2C:52-3 and 2C:52-4, must consider the Florida conviction in tabulating petitioner's d.p. convictions. Based on its statutory interpretation, the State has no objection to the expungement of the two New Jersey d.p. convictions because 2C:52-3 permits an expungement where the petitioner has not been convicted of "another three" d.p. offenses. Therefore, even including the Florida conviction, petitioner would not be barred. The State objects, however, to expunging the New Jersey m.o. conviction. It states the Florida d.p. conviction raises a statutory bar to petitioner's request as 2C:52-4 permits only two prior d.p. convictions not three as contained in petitioner's prior record.

Conversely, petitioner asserts the Legislature did not intend the inclusion of foreign d.p. or m.o. offenses in evaluating the numerical limitation expressed in the statutes under consideration. The legislation is clear and consistent, he contends, that only crimes committed in foreign jurisdictions are to be considered as barring agents since in each category of expungable offenses the clause "whether within this state or any other jurisdiction" appears only after "crime" and via statutory construction is applicable only to that type of offense. The consistent absence of this limiting language when addressing d.p. and m.o. offenses bolsters this interpretation, he asserts.

That there exists in law a dichotomy between crimes and d.p. offenses has long been established. New Jersey Courts have consistently held that a "disorderly persons is deemed to be a 'petty offense', rather than a 'crime' within the provisions of our Constitution." State v. Owens, 54 N.J. 153, 157, 254 A.2d 97 (Sup.Ct.1969). In State v. Blinsinger, 114 N.J.Super. 318, 276 A.2d 182 (App.Div.1971), defendant's subsequent conviction of simple assault and battery, a d.p. offense, did not bar expungement of prior conviction of breaking and entering. The Court held, predicated on statutory construction, that only a subsequent "criminal conviction" could bar the expungement. In its interpretation of "criminal conviction" it stated that a d.p. offense did not constitute a "criminal conviction", to the extent that it would deprive someone of the right to an expungement. Id. at 320, 276 A.2d 182. Compare State v. Josselyn, 148 N.J.Super. 538, 372 A.2d 1184 (Law Div.1970), (Defendant convicted in Virginia of an offense at least equivalent to a misdemeanor within ten years after conviction of petit larceny in New Jersey was not entitled to have his New Jersey conviction expunged.)

The expressed design of the expungement statute is to provide "relief to the one time offender who has led a life of rectitude and disassociated himself with unlawful activity ..." State v. XYZ Corp., 232 N.J.Super. 423, 428, 557 A.2d 670 (App.Div.1989), citing N.J.S.A. 2C:52-32. Expungement allows the "one time offender to answer any questions about an arrest or conviction as if they had never occurred." Id. at 429, 557 A.2d 670, citing N.J.S.A. 2C:52-27.

Despite this stated purpose, the Supreme Court in State v. A.N.J., 98 N.J. 421, 487 A.2d 324 (1985) noted that the 1981 amendment increased the maximum number of expungable d.p convictions to three. The statement accompanying the 1981 amendment was determined significant because "... it emphasizes the Legislature's clear understanding of the difference between a 'crime' and a disorderly persons' offense." Id. at 426, 487 A.2d 324. In support, the Court noted that Title 2C explicitly differentiates crimes from d.p. offenses under N.J.S.A. 2C:1-4:

a. An offense defined by this code or by any other statute of this State, for which a sentence of imprisonment in excess of 6 months is authorized, constitutes a crime within the meaning of the Constitution of this State. Crimes are designated in this code as being of the first, second, third or fourth degree.

b. An offense is a disorderly persons offense if it is so designated in this code or in a statute other than this code. An offense is a petty disorderly persons offense if it is so designated in this code or in a statute other than this code. Disorderly persons offenses and petty disorderly persons offenses are petty offenses and are not crimes within the meaning of the Constitution of this State. There shall be no right to indictment by a grand jury nor any right to trial by jury on such offenses. Conviction of such offenses shall not give rise to any disability or legal disadvantage based on conviction of a crime. [Emphasis added].

Further confirmation that the Legislature meant to limit expungement only to the one-time "criminal" offender was found by contrasting the language in N.J.S.A. 2C:52-2 which bars expungement of a conviction of a crime if the offender has been convicted of any prior or subsequent crime, and 2C:52-3 which bars expungement of disorderly persons offenses only for those "convicted of any prior or subsequent crime ..., or of another three disorderly persons or petty disorderly persons offenses". State v. A.N.J., 98 N.J. at 426-27, 487 A.2d 324.

The Court's function is to enforce the legislative will as expressed by clear language contained in the statute. Howell Tp. v. Manasquan River Regional Sewerage Authority, 215 N.J.Super. 173, 521 A.2d 858 (App.Div.1987). In construing a statute, a court...