Opinion
DOCKET NO. A-4941-11T4
02-06-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. M.L., Defendant-Appellant.
Laura M. Majewski argued the cause for appellant (Pascarella and Associates, P.C., attorneys; Stephen M. Pascarella, of counsel and on the brief). Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Mr. Brater, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Sabatino.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 96-07-1121.
Laura M. Majewski argued the cause for appellant (Pascarella and Associates, P.C., attorneys; Stephen M. Pascarella, of counsel and on the brief).
Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Mr. Brater, of counsel and on the brief). PER CURIAM
Defendant M.L. appeals from the April 25, 2012 order of the Law Division denying his petition for expungement of records relating to his arrests and convictions under Indictment No. 96-07-1121 pursuant to N.J.S.A. 2C:52-1 to -32. We affirm.
On July 17, 1996, a Monmouth County Grand Jury returned Indictment No. 96-07-1121 charging defendant with fourth-degree possession of a controlled dangerous substance (CDS) (marijuana) with intent to distribute on December 11, 1995, in the Borough of West Long Branch, N.J.S.A. 2C:35-5(b)(12) (Count One); fourth-degree distribution of CDS (marijuana) on December 11, 1995, in the Borough of West Long Branch, N.J.S.A. 2C:35-5(b)(12) (Count Two); fourth-degree possession of CDS (marijuana) with intent to distribute on February 12, 1996, in the Borough of West Long Branch, N.J.S.A. 2C:35-5(b()12) (Count Three); fourth-degree distribution of CDS (marijuana) on February 12, 1996, in the Borough of West Long Branch, N.J.S.A. 2C:35-5(b)(12) (Count Four); and third-degree possession of CDS (LSD) on May 1, 1996, in the City of Long Branch, N.J.S.A. 2C:35-10(a)(1) (Count Five). The charges on Counts One through Four stemmed from defendant's sale of marijuana to an undercover detective on two separate occasions. The charges in Count Five arose upon defendant's May 1, 1996 arrest on the two warrants issued for the two separate sales of marijuana on December 11, 1995 and February 12, 1996. At the time of defendant's arrest, he was in possession of LSD, which is the subject of Count Five, and marijuana, for which he was charged in Summons No. S-1996-000710 with a disorderly persons offense, N.J.S.A. 2C:35-10(a)(4).
Previously, on November 10, 1995, defendant had been arrested in West Long Branch and charged in Complaint No. S-1995-681397 with the disorderly persons offense of possessing less than 50 grams of marijuana, N.J.S.A. 2C:35-10(a)(4), to which he pled guilty in municipal court on January 23, 1997.
On August 26, 1996, pursuant to a negotiated plea agreement, defendant pled guilty to Counts Two, Four and Five of the indictment. In exchange, the State agreed to dismiss Counts One and Three of the indictment, as well as the disorderly persons charge under Summons Number S-1996-000710, and to recommend a sentence of non-custodial probation. On November 1, 1996, defendant was sentenced, in accordance with the plea agreement, to concurrent three-year terms of non-custodial probation on Counts Two, Four and Five. Pursuant to the terms of the plea agreement, Counts One and Three of the indictment were dismissed, as was the disorderly persons marijuana possession charge under Summons Number S-1996-000710. Other than these charges, defendant had an unblemished record.
Defendant apparently completed his probationary sentence successfully and was neither arrested nor convicted of any offense or crime since that time. Approximately fifteen years later, on October 7, 2011, defendant filed a petition to expunge all records relating to his arrests and convictions under Indictment No. 96-07-1121 and Complaint No. S-1995-681397. The Law Division judge denied the petition, relying on In re Ross, 400 N.J. Super. 117, 122 (App. Div. 2008), and concluding that defendant committed the crimes charged in Counts Two, Four and Five on three different occasions and, therefore, his convictions on those counts qualified as convictions for "prior or subsequent" crimes, which were precluded from expungement under the applicable statute, N.J.S.A. 2C:52-2(a). Furthermore, because defendant was not entitled to expungement of his indictable convictions, the judge ruled that N.J.S.A. 2C:52-14(c) precluded expungement of the charges that were dismissed as a result of the plea agreement. See N.J.S.A. 2C:52-14(c) ("[a] petition for expungement filed pursuant to this chapter shall be denied when . . . [i]n connection with a petition under section 2C:52-6, the acquittal, discharge or dismissal of charges resulted from a plea bargaining agreement involving the conviction of other charges.").
On appeal, defendant raises the following issues:
I. The State failed to recognize the distinguishing factors between In re Expungement Petition of Ross, 400 N.J. Super. 117 (App. Div. 2008) and the case sub judice.
II. The State failed to provide a preponderance of evidence that [M.L.]
should not be granted the generally applied remedy of Expungement.
III. The application of In re Expungement Petition of Ross, 400 N.J. Super. 117, 119 (App. Div. 2008) in relation to N.J.S.A. 2C:52-2 is not exclusive of the application of In re Application of Fontana, 146 N.J. Super. 264, 369 A.2d 935 (App. Div. 1976).
IV. The application of In re Expungement Petition of Ross, 400 N.J. Super. 117, 119 (App. Div. 2008) to the case sub judice defies the purpose of the Expungement mechanism.
We find these arguments lack merit, Rule 2:11-3(e)(2), and therefore affirm substantially for the reasons stated by Judge Mullaney in his April 25, 2012 written opinion. We add only the following comments.
On appeal, defendant argues that all the criminal activity in the one indictment resulted from a single undercover "sting" operation and thus urges that the "one night spree" doctrine of In re Fontana, 146 N.J. Super. 264, 266-67 (App. Div. 1976), survives Ross. We disagree.
In Fontana, we held that numerous crimes committed by the defendant over a one-week period contained in six indictments but pled to on the same day constituted "a conviction" for purposes of the expungement statute then in effect. Ibid. We permitted the expungement of the multiple offenses under the circumstances of the case because we viewed the criminal conduct at issue "as akin to a 'one night spree' which had generally received special consideration in sentencing[.]" Id. at 267 (citation omitted).
N.J.S.A. 2A:164-28, which was the applicable expungement statute prior to the enactment of Title 2C of the penal code in 1979 and enactment of the expungement statutes for indictable offenses, N.J.S.A. 2C:52-2, provided in pertinent part:
In all cases wherein a criminal conviction has been entered against any person whereon sentence was suspended, or a fine imposed of not more than $1,000 and no subsequent conviction has been entered against such person, it shall be lawful after the lapse of ten years from the date of such conviction for the person so convicted to present a duly verified petition to the Court, wherein such conviction was entered, setting forth all the facts in the matter and praying for the relief provided in this section.
[(Emphasis added).]
However, the expungement statute was amended in 1979, subsequent to Fontana, to provide in pertinent part:
Indictable Offenses. 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 . . . [the person] 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, . . . [apply for expungement of] such conviction and all records and information pertaining thereto. . . .
[N.J.S.A. 2C:52-2(a) (emphasis added).]
In Ross, supra, we reasoned that "when the Legislature enacted N.J.S.A. 2C:52-2, it deliberately chose to alter the more expansive view of expungement that had existed under N.J.S.A. 2A:164-28 and that was exemplified by our decision in Fontana," and concluded that "when the Legislature chose the language 'subsequent crime' it intended to preclude expungement of a conviction where an individual commits a second crime even if the two crimes result in a single sentencing and conviction date." 400 N.J. Super. at 123-24. We reasoned thus:
We conclude that the statute is clear and unambiguous on its face and is susceptible of only one interpretation. Unquestionably, the words "prior" and "subsequent" do not modify the term "conviction." Instead, they modify the term "crime," which leads to the conclusion that if two crimes are committed on separate occasions, they are precluded from expungement regardless of whether the two crimes carry a single sentencing date and therefore a single date of conviction. We agree with the State's contention that had the Legislature intended to permit the result petitioner urges, it would have used the language "and who has no prior or subsequent convictions."We discern no basis to hold otherwise.
[Id. at 122.]
Even under Fontana, as the Law Division judge found, the record in this matter does not support the application of the "single spree" doctrine. Defendant pled guilty to three crimes occurring on three different dates spanning a period of six months, and all of which were independent of each other. These separate offenses each qualify as prior or subsequent crimes, and thus preclude expungement of each other.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION