State v. W. J. A.

• Decision Date: 05 February 1980
• Parties: In the Matter of STATE of New Jersey, Plaintiff, v. W. J. A., Defendant. (Criminal), Cumberland County
• Court: New Jersey Superior Court

Page 19

173 N.J.Super. 19

412 A.2d 1355

In the Matter of STATE of New Jersey, Plaintiff, v. W. J. A., Defendant.

Superior Court of New Jersey, Law Division (Criminal), Cumberland County.

Feb. 5, 1980.

Kevin McCann, Asst. County Prosecutor, for plaintiff (William P. Doherty, Jr., Prosecutor of Cumberland County, attorney).

Michael J. Gruccio, Vineland, for defendant (Adamo, Pagliughi & Gruccio, Vineland, attorneys).

PORRECA, J. S. C.

The disclosure requirements for casino employee license applicants authorized by the State Casino Control Commission provide the setting for this expungement petition which poses the question: May records of adjudications of juvenile delinquency be expunged? The factual background may be briefly stated.

Petitioner, a 35-year-old man, needs an employee license from the State Casino Control Commission in order to get a job in an Atlantic City casino. By statute all applicants for a casino license are required to disclose their criminal and arrest record on a personal history disclosure form as directed by the Casino Control Commission. N.J.S.A. 5:12-89, N.J.A.C. 19:41-7.14.

Question No. 45 of the personal history disclosure form asks:

Have you ever been arrested or charged with any juvenile offense whether in this state or in any other jurisdiction?

Yes No . . .

If an applicant answers yes, he must then describe the nature of the charge or arrest, the name and address of the agency or court involved, the date of the offense, and its disposition.

Question 46 then asks whether the applicant, or any member of the applicant's immediate family, has ever been arrested, indicted and/or charged with or convicted of a criminal or disorderly persons offense in this State or in any other jurisdiction. Again an affirmative answer requires a description of the transaction and its disposition. With respect to this question an additional instruction is provided on the disclosure form:

For the purpose of this question, the words "arrest", "indictment", or "charge" include any questioning, detaining, holding or taking into custody by any police or other law enforcement authorities in order to answer for the alleged performance of any "offense" in this or any other State or foreign country; and the word "offense" includes all high misdemeanors, felonies, misdemeanors, disorderly persons offenses and juvenile violations. The only such "arrest", "indictment", or "charge" which an applicant is not required to disclose on this application is one which has been legally expunged by a written order of a court of this State. (Emphasis supplied)

Failure to answer any question completely and truthfully will result in denial of the license application. N.J.S.A. 5:12-86.

Petitioner is reluctant to complete and file the disclosure form because 18 years ago he was adjudicated a delinquent by the Cumberland County Juvenile Court for three separate incidents in 1961 on charges of aggravated assault and battery, assault and battery and carnal abuse. He seeks expungement of these adjudications of juvenile delinquency pursuant to N.J.S.A. 2C:52-1 et seq. so that he can lawfully avoid disclosure of his juvenile background while completing the disclosure form. In addition, a separate petition seeks expungement of a 1962 conviction for assault and battery, a disorderly persons offense, and a 1966 arrest on the same charge which did not result in a conviction.

The present expungement law is now contained in N.J.S.A. 2C:52-1 et seq. as amended by L. 1979, c. 178, § 108-139. Subject to certain exceptions, expungement is now authorized for records of conviction of certain indictable offenses, N.J.S.A. 2C-52-2; convictions of disorderly persons offenses and petty disorderly persons offense, N.J.S.A. 2C:52-3; violations of municipal ordinances, N.J.S.A. 2C:52-4; certain drug-related offenses where the offender was under 21 at the time of the offense, N.J.S.A. 2C:52-5 and arrests not resulting in conviction, N.J.S.A. 2C:52-6. Thus, with the exception of certain drug related offenses detailed in N.J.S.A. 2C:52-5, the expungement statutes make no mention of records of offenses committed while a juvenile. The sole method for preventing disclosure of records of adjudications of juvenile delinquency is by a motion for "sealing" of these records brought by the person who has been the subject of a complaint charging juvenile delinquency or by the juvenile court. N.J.S.A. 2A:4-67. Pursuant to a "sealing" request, the juvenile court may vacate its order and findings and order the nondisclosure of social, medical, psychological, legal and other records of the court, probation services and law enforcement agencies, if it finds:

(1) Two years have elapsed since the final discharge of the person from legal custody or supervision, or (two) years have elapsed after the entry of any other court order not involving custody or supervision; and

(2) (the person) has not been convicted of a crime, or a disorderly person's offense or adjudged delinquent, or in need of supervision during the (two) years prior to the filing of the motion, and no proceeding or complaint is pending seeking such conviction or adjudication. N.J.S.A. 2A:4-67.

The Cumberland County Probation Department, Juvenile Division, presently maintains a sealed record of petitioner's three adjudications of juvenile delinquency. However, since these records have not been "expunged," petitioner is required to reveal them on the disclosure form. It is thus petitioner's contention that the sealing remedy is inadequate in this case and expungement should be authorized. For support petitioner relies on State in Interest of R.C.C., 151 N.J.Super. 174, 376 A.2d 614 (J. & D.R.Ct. 1977). In R.C.C. the court held that the existence of the sealing remedy in N.J.S.A. 2A:4-67 did not preclude a person from availing himself of the expungement relief for dismissed charges authorized by N.J.S.A. 2A:85-15, repealed and replaced by N.J.S.A. 2C:52-6, L. 1979, c. 178, § 113. That case is distinguishable in that R.C.C. sought expungement of dismissed charges of juvenile delinquency while in the case at bar expungement is sought for adjudications of juvenile delinquency. In reaching its decision the court in R.C.C. noted that the expungement statute (former N.J.S.A. 2A:85-15) was intended to operate where a defendant's contacts with the criminal justice system are some indication of innocence arrests, dismissals, acquittals; while the sealing statute's overall purpose is to deal with conviction records. Id. at 177-178, 376 A.2d 614. Since the charges against R.C.C. had been dismissed and the court held that the use of the term "person" in the expungement statute could properly be construed to include juveniles, it found the expungement remedy to be available to R.C.C. Undoubtedly, if R.C.C. had sought expungement of an adjudication of delinquency instead of a dismissal, the result would have been different, and thus R.C.C. does not support petitioner's argument.

As pointed out in R.C.C. the remedy of expungement is far more effective...