Opinion
DOCKET NO. A-5160-14T2
10-20-2016
IN THE MATTER OF THE EXPUNGEMENT APPLICATION OF K.E.B.
Edward C. Bertucio argued the cause for appellant (Hobbie, Corrigan & Bertucio, P.C., attorneys; Mr. Bertucio, of counsel; Elyse S. Schindel, on the brief). Mary R. Juliano, Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney; Ms. Juliano, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Fasciale and Kennedy. On appeal from Superior Court of New Jersey, Law Division, Monmouth County. Edward C. Bertucio argued the cause for appellant (Hobbie, Corrigan & Bertucio, P.C., attorneys; Mr. Bertucio, of counsel; Elyse S. Schindel, on the brief). Mary R. Juliano, Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney; Ms. Juliano, of counsel and on the brief). PER CURIAM
K.E.B appeals from a June 4, 2015 amended order denying in part his petition to expunge various convictions and arrests pursuant to the Expungement of Records Act, N.J.S.A. 2C:52-1 to -32.1. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
On December 30, 1986, K.E.B was charged in Manasquan Complaint C-1333 with third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4. A grand jury no-billed this offense. On December 30, 1986, K.E.B. was charged in Manasquan Complaint C-1332 with discharging pellets, in violation of a local ordinance. On April 15, 1987, K.E.B. was convicted of the discharging pellets offense.
K.E.B. argues that on December 31, 1986, the police arrested him on another weapons offense. He asserts the new arrest resulted in Manasquan Summons No. S-446461, charging him with committing third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4. The State, however, contends that there was no new arrest on December 31, 1986. Instead, the State maintains that the December 30, 1986 possession of a weapon for an unlawful purpose arrest corresponded with Summons S-446461.
On July 30, 1988, the police arrested K.E.B. and charged him with committing disorderly persons improper behavior, N.J.S.A. 2C:33-2(a)(2). On December 7, 1988, K.E.B. was convicted of committing that offense. The court then sentenced K.E.B. to two years of probation.
On January 6, 2003, K.E.B. was indicted on new charges. K.E.B. proceeded to trial on those charges and a jury found him guilty of fourth-degree criminal coercion. The rest of the charges resulted either in a dismissal or an acquittal. On December 22, 2003, the court sentenced K.E.B. to three years of probation for the criminal coercion conviction.
A grand jury indicted and charged defendant with second-degree attempt, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:24-4(b)(4)(a); third-degree criminal coercion, N.J.S.A. 2C:13-5(a); and two counts of fourth-degree endangering the welfare of a child, possession of child pornography, N.J.S.A. 2C:24-4(b)(5)(b).
On December 3, 2014, K.E.B. filed a verified petition seeking to expunge:
[1]. Indictment No. 03-01-0007-I and all related records. . . ;
[2]. Manasquan Police Case No. 82-2962 and all related records. . . ;
[3]. Manasquan Complaint No. C-1332, a violation of a borough ordinance and all related records. . . ;
[4]. Manasquan Complaint No. C-1333, an indictable offense that was "no-billed" and all related records. . . ;
[5]. Manasquan Summons No. S-446461, an indictable offense that was "no-billed," and all related records. . . ;
[6]. Manasquan Complaint No. C-1022, a disorderly persons offense, and all related records. . . ; and
[7]. Manasquan Complaint Nos. W-2002-0035, W-2002-0042, and W-2002-0045, all charging disorderly persons offenses, and all related records. . . .K.E.B. filed an amended verified petition on February 26, 2015, and on May 28, 2015, the judge heard oral argument. In a written opinion, the judge granted the application in part and denied it in part.
The judge expunged K.E.B.'s criminal coercion conviction. The judge found K.E.B. ineligible for expungement of his 1988 disorderly persons offense because K.E.B. had subsequently been convicted of criminal coercion. The judge found K.E.B. ineligible for expungement of the conviction for discharging pellets for the same reason. And the judge found K.E.B. ineligible for expungement of his December 30, 1986 possession of a weapon for an unlawful purpose offense because it was inextricably intertwined with committing the discharging pellets offense.
The judge states this arrest occurred on December 31, 1986, but the record reflects this arrest most likely occurred on December 30, 1986. --------
On appeal, K.E.B. argues that (1) his December 30, 1986 arrest for possession of a weapon for an unlawful purpose under Manasquan Complaint C-1333 should be expunged because it did not result in a conviction; (2) the judge ignored his request to expunge his purported December 31, 1986 arrest for possession of a weapon for an unlawful purpose; and (3) the judge erroneously considered his conviction of criminal coercion when ruling K.E.B. was ineligible for expungement of his convictions for discharging pellets and improper behavior disorderly persons offense.
We review the judge's legal determinations de novo. State v. Gandhi, 201 N.J. 161, 176 (2010). In expungement cases, "'[a] petitioner has the burden to satisfy the requirements of the expungement statute[,] by a preponderance of the evidence.'" In re Criminal Records of R.Z., 429 N.J. Super. 295, 302-03 (App. Div. 2013) (alteration in original) (quoting In re Expungement Petition of D.H., 204 N.J. 7, 18 (2010)). After the petitioner has established that he or she meets the statutory requirements, the burden shifts to the State "to 'demonstrate[] by a preponderance of the evidence that there is a statutory bar or that the petition should not be granted.'" In re Expungement Petition of D.H., supra, 204 N.J. at 18 (alteration in original) (quoting In re G.R., 395 N.J. Super. 428, 431 (App. Div.), certif. denied, 193 N.J. 275 (2007)).
We begin by addressing the court's unwillingness to expunge the December 30, 1986 arrest for possession of a weapon for an unlawful purpose.
We reject K.E.B.'s contention that N.J.S.A. 2C:52-6 applies to his December 30, 1986 arrest for possession of a weapon for an unlawful purpose. N.J.S.A. 2C:52-6, which pertains to arrests not resulting in convictions, states in pertinent part that
[w]hen a person has been arrested or held to answer for a crime, . . . and proceedings against the person were dismissed, . . . the Superior Court shall, . . . upon receipt of an application from the person, order the expungement of all records and information relating to the arrest or charge.The judge treated the December 30, 1986 weapons offense as linked with the discharging pellets violation, and because K.E.B. was convicted of discharging pellets, the judge did not expunge the weapons offense. In other words, the judge concluded the weapons charge did not result in just an arrest, it resulted in a conviction.
The New Jersey Supreme Court's interpretation of "prior or subsequent crime," N.J.S.A. 2C:52-2, is helpful to our analysis of the applicability of N.J.S.A. 2C:52-6. In In re Expungement Petition of J.S., the Court stated that "[a] single crime does not necessarily result in a single offense, given that multiple charges may arise from one crime. Rather, it involves a single, uninterrupted criminal event or incident." 223 N.J. 54, 76 (2015). In that case, one of the petitioners, J.S., was arrested and charged with nine offenses, which occurred on two separate days. Id. at 60. He pled guilty to two offenses, each of which occurred on a different day. Id. at 61. The second petitioner, G.P.B., pled guilty to four offenses which also occurred on two separate days. Id. at 63. Both petitioners argued that their offenses should be considered as single crimes. Id. at 61-63.
The Court explained that "the Legislature clearly intended to bar expungement when [an] offender has committed a second crime at an earlier or later time, whether or not those crimes are resolved in the same judgment of conviction." Id. at 76-77. The Court denied both petitioners' request to expunge their offenses. Id. at 77. J.S.'s offenses "were not committed as part of a single, uninterrupted criminal event." Ibid. And G.P.B.'s offenses each "consisted of a separate criminal event," and therefore "were 'prior' and 'subsequent' to one another[.]" Ibid.
We conclude that the December 30, 1986 arrest for possession of a weapon for an unlawful purpose and the violation of the Borough ordinance for discharging pellets are inextricably intertwined, unlike the J.S. offenses. The judge correctly stated that the "'weapon' charge ha[d] the same docket number, date of offense, arrest date, and arresting officer" as the discharging pellets offense. The weapons and discharging pellets offenses emanated from the possession and use of a single weapon, occurred on the same day, and were both recorded by an officer at the same time. As a result, N.J.S.A. 2C:52-6 is inapplicable because these offenses constitute a single criminal event, resulting in a conviction.
We consider whether to expunge the December 30, 1986 weapons arrest, which was inextricably intertwined with the discharging pellets offense, by applying N.J.S.A. 2C:52-4, which permits expungement of an ordinance offense when (1) a petitioner has "not been convicted of any prior or subsequent crime"; (2) a petitioner has "not been adjudged a disorderly person or petty disorderly person on more than two occasions"; and (3) two years "from the date of [a petitioner's] conviction, payment of fine, satisfactory completion of probation or release from incarceration" have passed. We do so because the December 30, 1986 weapons arrest resulted in the ordinance conviction of discharging pellets. As a result, K.E.B. is ineligible for expungement of the December 30, 1986 weapons arrest because he was convicted of criminal coercion in 2003.
As to the December 31, 1986 purported arrest for possession of a weapon for an unlawful purpose, we remand for further proceedings. The judge did not resolve whether there were separate weapons arrests on December 30 and 31, 1986. In fairness to the judge, we note that the State concedes the record is unclear on this issue. We therefore remand for the parties to more fully develop the record, direct the judge to determine whether K.E.B. was arrested on December 31, 1986, and then adjudicate whether to expunge that arrest.
We conclude the borough ordinance violation for discharging pellets should not be expunged because K.E.B. was subsequently convicted of criminal coercion in 2003. We therefore reject his contention that the judge erroneously considered the expunged conviction of criminal coercion when the court denied K.E.B.'s request to expunge the borough ordinance violation for discharging pellets.
Previous expunged convictions can be considered when determining pending expungement applications. N.J.S.A. 2C:52-27 provides:
Unless otherwise provided by law, if an order of expungement is granted, the arrest, conviction and any proceedings related thereto shall be deemed not to have occurred, and the petitioner may answer any questions relating to their occurrence accordingly, except as follows:The expungement statute is meant to "provid[e] relief to the reformed offender who has led a life of rectitude and disassociated himself with unlawful activity" and not meant "to create a system whereby persistent violators of the law or those who associate themselves with continuing criminal activity have a regular means of expunging their police and criminal records." N.J.S.A. 2C:52-32. Furthermore, the statute "does not permit a multiple offender to expunge his entire criminal record by simply expunging each conviction one at a time." State v. Blazanin, 298 N.J. Super. 221, 229 (App. Div. 1997) (citations omitted).
a. The fact of an expungement, sealing or similar relief shall be disclosed as provided in section 2C:52-8 b [statements to accompany petition for expungement].
[(Emphasis added).]
The judge considered the conviction for criminal coercion, even though he also expunged that 2003 conviction, and therefore found K.E.B. ineligible for expunging the conviction for discharging pellets. The judge applied N.J.S.A. 2C:52-4, which states:
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 the expiration of a period of 2 years from the date of his conviction, payment of fine, satisfactory completion of probation or release from incarceration, whichever is later, present a duly verified petition as provided in
section 2C:52-7 herein to the Superior Court in the county in which the violation occurred praying that such conviction and all records and information pertaining thereto be expunged.Because the criminal coercion conviction occurred subsequent to K.E.B.'s ordinance violation, K.E.B. is ineligible for expungement.
Finally, like his analysis as to the conviction for discharging pellets, the judge properly found K.E.B.'s improper behavior disorderly persons offense was ineligible for expungement because K.E.B. was subsequently convicted of criminal coercion in 2003.
Pursuant to N.J.S.A. 2C:52-3(a), disorderly persons offenses and petty disorderly persons offenses,
[a]ny person convicted of a disorderly persons offense or petty disorderly persons offense under the laws of this State who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, may present an expungement application to the Superior Court pursuant to this section. Any person convicted of a disorderly persons offense or petty disorderly persons offense under the laws of this State who has also been convicted of a prior or subsequent crime shall not be eligible to apply for an expungement pursuant to this section, but may present an expungement application to the Superior Court pursuant to [N.J.S.A] 2C:52-2.Moreover, N.J.S.A. 2C:52-14(e) states that expungement shall be denied when "[a] person has had a previous criminal conviction expunged regardless of the lapse of time between the prior expungement, or sealing under prior law, and the present petition." Consequently, the judge properly denied K.E.B.'s application for expungement of his improper behavior disorderly persons offense.
Affirmed in part, reversed in part, and remanded in part for further proceedings consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION