State v. J. C. S.

• Court: New Jersey Superior Court – Appellate Division
• Citation: 156 N.J.Super. 66,383 A.2d 455
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. J. C. S., Defendant-Appellant.
• Decision Date: 03 February 1978

Page 66

156 N.J.Super. 66 383 A.2d 455 STATE of New Jersey, Plaintiff-Respondent,
v.
J. C. S., Defendant-Appellant. Superior Court of New Jersey, Appellate Division. Submitted Jan. 17, 1978.
Decided Feb. 3, 1978.

Page 67

Goldenberg, Mackler & Feinberg, Atlantic City, for defendant-appellant (Harry A. Goldenberg, Atlantic City, on the brief).

William F. Hyland, Atty. Gen., for plaintiff-respondent (Edwin H. Stern, Deputy Atty. Gen., of counsel and on the brief; Anne P. Weiner, Deputy Atty. Gen., on the brief).

Before Judges ALLCORN, MORGAN and HORN.

The opinion of the court was delivered by

HORN, J. A. D.

In this case the trial judge accepted from defendant a negotiated plea of guilty to possession of more than 25 grams of marijuana (N.J.S.A. 24:21-20(a) (3)). At the time of said offense defendant was under 21 years of age. On June 25, 1973 the judge sentenced defendant as follows:

* * * to New Jersey Reformatory at Yardville, Youth Reception and Correction Center for an indeterminate term. Sentence suspended except thirty days which will be spent in the County Jail. Defendant to report to the County Jail 9:00 A.M. Friday, Saturday, and Sunday [383 A.2d 456] of each week until the thirty days are served. After released, defendant placed on probation for two years under the statutory probationary terms and as more fully stated at time of sentence. Fined the sum of two hundred ($200.00) dollars payable as directed by the Probation Officer.

After defendant was incarcerated for 12 days in the county jail, he was released on two years' probation. On August 1,

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1977, more than six months following his two-year probation period, which he underwent without undue incident, he applied to the County Court for an order expunging the record of his conviction, pursuant to N.J.S.A. 24:21-28. After a hearing the judge denied the application by reason of his interpretation of N.J.S.A. 24:21-28 as precluding expungement thereunder for anyone who has served any interval of incarceration as a result of the proceedings sought to be expunged. Defendant assails this interpretation through this appeal.

N.J.S.A. 24:21-28 provides:

After a period of not less than 6 months, which shall begin to run immediately upon the expiration of a term of probation imposed upon any person under this act, such person, who at the time of the offense was 21 years of age or younger, may apply to the court for an order to expunge from all official records, except from those records maintained under the Controlled Dangerous Substances Registry, as established and defined in the Controlled Dangerous Substances Registry Act of 1970, all recordations of his arrest, trial and conviction pursuant to this section. If the court determines, after a hearing and after reference to the Controlled Dangerous Substances Registry, that such person during the period of such probation and during the period of time prior to his application to the court under this section has not been guilty of any serious or repeated violation of the conditions of such probation, it shall enter such order. The effect of such order shall be to restore such person, in the contemplation of the law, to the status he occupied prior to such arrest and trial. No person as to whom such order has been entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of his failure to recite or acknowledge such arrest or trial in response to any inquiry made of him for any purpose.

Although the statute is silent as to incarceration, the trial judge reasoned that to interpret the statute as applicable to one whose sentence included incarceration followed by probation would lead to an anomalous situation. In his view, where a person was sentenced to a similar term of...