STATE OF NEW JERSEY VS. N.T. (07-12-2892, MONMOUTH COUNTY AND STATEWIDE) ( 2019 )


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  •                   NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-1012-18T2
    STATE OF NEW JERSEY,
    APPROVED FOR PUBLICATION
    Plaintiff-Respondent,
    December 3, 2019
    v.                                           APPELLATE DIVISION
    N.T.,
    Defendant-Appellant.
    ____________________________
    Argued October 16, 2019 – Decided December 3, 2019
    Before Judges Yannotti, Hoffman and Currier.
    On appeal from the Superior Court of New Jersey,
    Law Division, Monmouth County, Indictment No. 07-
    12-2892.
    N.T., appellant, argued the cause pro se.
    Ian D. Brater, Assistant Prosecutor, argued the cause
    for respondent (Christopher J. Gramiccioni,
    Monmouth County Prosecutor, attorney; Ian D. Brater,
    of counsel and on the brief).
    Stephen P. Hunter, Assistant Deputy Public Defender,
    argued the cause for amicus curiae The American
    Civil Liberties Union of New Jersey Foundation and
    New Jersey Office of the Public Defender (American
    Civil Liberties Union of New Jersey Foundation and
    Joseph E. Krakora, Public Defender, attorneys; Tess
    Meiling Borden, Jeanne M. LoCicero, Alexander R.
    Shalom, and Stephen P. Hunter, on the brief).
    The opinion of the court was delivered by
    CURRIER, J.A.D.
    Defendant N.T.1 appeals from the denial of her petition for expungement
    of all records relating to her arrest and conviction for third-degree endangering
    the welfare of a child for causing the child harm that would make the child an
    abused or neglected child, N.J.S.A. 2C:24-4(a)(2). Because we conclude that
    the expungement statute, N.J.S.A. 2C:52-2(b), as amended in 2016, prohibits
    the expungement of N.T.'s conviction, we affirm.
    In 2008, N.T. pleaded guilty to the third-degree endangering the welfare
    of a child charge.      Two years earlier, the Division of Youth and Family
    Services had removed N.T.'s four children from her care. In 2007, the children
    were returned to their father's custody – N.T's husband.      2
    N.T. was granted
    two hours weekly of supervised visits.
    The charges that led to the plea arose out of an incident that occurred in
    September 2007, when N.T. became intoxicated while on a supervised visit to
    the beach with her three-year-old son. When N.T. went into the water, she
    1
    We use initials to preserve the individuals' privacy. R. 1:38-3(f)(2).
    2
    N.T. and her husband divorced in 2009.
    A-1012-18T2
    2
    could not swim due to her intoxication, and she had to be rescued by another
    beachgoer. The child was standing in the waves up to his knees while these
    events unfolded.   The police were called and defendant was arrested and
    charged with endangering the welfare of a child, public intoxication, and
    possession of an open container of alcohol on the beach.          A subsequent
    custody order prohibited any contact between N.T. and her children.
    N.T. was charged in an indictment with second-degree endangering the
    welfare of a child in violation of N.J.S.A. 2C:24-4(a). As stated, she pleaded
    guilty to the amended third-degree charge.     During the plea hearing, N.T.
    stated her actions of drinking and going into the water incapacitated caused
    mental and emotional harm to her child. N.T. was sentenced to five years'
    probation and admitted into the Drug Court program.
    At the time of N.T.'s plea, N.J.S.A. 2C:24-4(a) provided:
    Any person having a legal duty for the care of a child
    or who has assumed responsibility for the care of a
    child who engages in sexual conduct which would
    impair or debauch the morals of a child, or who causes
    the child harm that would make the child an abused or
    neglected child as defined in [N.J.S.A. 9:6-1, N.J.S.A.
    9:6-3, and N.J.S.A. 9:6-8.21] is guilty of a crime of
    the second degree. Any other person who engages in
    conduct or who causes harm as described in this
    subsection to a child under the age of [sixteen] is
    guilty of a crime of the third degree.
    A-1012-18T2
    3
    N.J.S.A. 2C:52-2(b), the expungement statute in effect at the time of N.T.'s
    conviction, provided:
    Records of conviction for the following crimes
    specified in the New Jersey Code of Criminal Justice
    shall not be subject to expungement: . . . [N.J.S.A.]
    2C:24-4(a). (Endangering the welfare of a child by
    engaging in sexual conduct which would impair or
    debauch the morals of the child . . . .)
    In 2013, the Legislature amended N.J.S.A. 2C:24-4(a), dividing
    subsection (a) into two separate paragraphs:
    (1) Any person having a legal duty for the care of a
    child or who has assumed responsibility for the care of
    a child who engages in sexual conduct which would
    impair or debauch the morals of the child is guilty of a
    crime of the second degree. Any other person who
    engages in conduct or who causes harm as described
    in this paragraph to a child is guilty of a crime of the
    third degree.
    (2) Any person having a legal duty for the care of a
    child or who has assumed responsibility for the care of
    a child who causes the child harm that would make the
    child an abused or neglected child as defined in
    [N.J.S.A. 9:6-1, N.J.S.A. 9:6-3, and N.J.S.A. 9:6-8.21]
    is guilty of a crime of the second degree. Any other
    person who engages in conduct or who causes harm as
    described in this paragraph to a child is guilty of a
    crime of the third degree.
    In 2016, the Legislature amended N.J.S.A. 2C:52-2(b) in pertinent part,
    stating:
    Records of conviction for the following crimes
    specified in the New Jersey Code of Criminal Justice
    A-1012-18T2
    4
    shall not be subject to expungement: . . . subsection a.
    of [N.J.S.A.] 2C:24-4 (Endangering the welfare of a
    child by engaging in sexual conduct which would
    impair or debauch the morals of the child, or causing
    the child other harm) . . . .
    Also in 2016, the Legislature enacted N.J.S.A. 2C:35-14(m), which permitted
    individuals who were successfully discharged from Drug Court to petition for
    expungement. N.J.S.A. 2C:35-14(m) cross-references the exclusions found in
    N.J.S.A. 2C:52-2(b), and precludes the expungement of convictions that are
    barred under that statute.
    In the ensuing years since N.T.'s conviction, she has worked hard to turn
    her life around. She regained custody of her children and was successfully
    discharged from Drug Court in 2011. She has obtained both a real estate and
    title insurance producer's license and serves as a sponsor to individuals in
    Alcoholics Anonymous and Narcotics Anonymous.            In 2018, N.T. began
    pursuing her masters of science in clinical mental health counseling at
    Monmouth University. This degree will allow N.T. to satisfy the licensing
    requirements to become both a licensed clinical alcohol and drug counselor
    and a licensed professional counselor.
    Despite these achievements, N.T. states that her criminal history has
    prevented her from obtaining a job with an insurance company as an agent and
    a position as an independent contractor with a real estate company. Therefore,
    A-1012-18T2
    5
    she filed a petition under N.J.S.A. 2C:35-14(m) to expunge her 2008
    conviction. The motion judge concluded that the plain language of N.J.S.A.
    2C:52-2(b) precluded the grant of the petition.
    On appeal, N.T. argues that the motion judge erred in finding the
    language of N.J.S.A. 2C:52-2(b) is          unambiguous and prevents          the
    expungement of non-sexual Title 9 crimes.         Amici for the American Civil
    Liberties Union of New Jersey Foundation and the New Jersey Office of the
    Public Defender join in N.T.'s arguments.
    Our review of a trial court's statutory interpretation is de novo. Beim v.
    Hulfish, 
    216 N.J. 484
    , 497 (2014) (citing Zabilowicz v. Kelsey, 
    200 N.J. 507
    ,
    512 (2009); Twp. of Holmdel v. N.J. Highway Auth., 
    190 N.J. 74
    , 86 (2007)).
    "In construing a statute, our 'overriding goal is to determine as best we can the
    intent of the Legislature, and to give effect to that intent.'"    Bermudez v.
    Kessler Inst. for Rehab., 
    439 N.J. Super. 45
    , 50 (App. Div. 2015) (quoting
    State v. Hudson, 
    209 N.J. 513
    , 529 (2012)). "The Legislature's intent is the
    paramount goal when interpreting a statute and, generally, the best indicator of
    that intent is the statutory language." DiProspero v. Penn, 
    183 N.J. 477
    , 492
    (2005) (citing Frugis v. Bracigliano, 
    177 N.J. 250
    , 280 (2003)). Thus, "[t]he
    plain language of the statute is our starting point." Patel v. N.J. Motor Vehicle
    Comm'n, 
    200 N.J. 413
    , 418 (2009) (citations omitted).          "Courts may not
    A-1012-18T2
    6
    rewrite a plainly written law or presume that the Legislature intended
    something other than what it expressed in plain words."            In re Plan for
    Abolition of the Council on Affordable Hous., 
    214 N.J. 444
    , 468 (2013) (citing
    
    DiProspero, 183 N.J. at 492
    ; O'Connell v. State, 
    171 N.J. 484
    , 488 (2002)). "If
    the language of a statute is clear, a court's task is complete." 
    Ibid. Here, we need
    look no further than the plain language of N.J.S.A. 2C:52-
    2(b) to discern its meaning.      The language of the statute unambiguously
    prohibits the expungement of N.T.'s conviction.
    Although the legislative purpose in enacting N.J.S.A. 2C:52-2 was to
    "provid[e] relief to the reformed offender who has led a life of rectitude and
    disassociated himself with unlawful activity," the statute includes a list of
    crimes that are barred from expungement. N.J.S.A. 2C:52-32; see N.J.S.A.
    2C:52-2(b).     That list includes the prohibition of an expungement of a
    conviction under "subsection a. of [N.J.S.A.] 2C:24-4 . . . ." N.J.S.A. 2C:52-
    2(b).
    The parenthetical following "subsection a. of [N.J.S.A.] 2C:24-4" states:
    "Endangering the welfare of a child by engaging in sexual conduct which
    would impair or debauch the morals of the child, or causing the child other
    harm . . . ."    
    Ibid. The language of
    this parenthetical prior to the 2016
    amendment did not include the "or causing the child other harm" language.
    A-1012-18T2
    7
    N.T. argues that the phrase "'or causing the child other harm' refers to
    only 'other' harm stemming from sexual conduct." Because there is only one
    comma in the entire parenthetical and there are not multiple items, N.T.
    contends the phrase "or causing the child other harm" is a dependent clause
    and cannot stand alone. She posits that the phrase is related to the independent
    clause preceding the comma. Therefore, since her conduct was non-sexual in
    nature, N.T. maintains her conviction is not included in the prohibited list and
    she is entitled to its expungement. We disagree.
    "'[T]he word "or" in a statute is to be considered a disjunctive particle
    indicating an alternative[.]'" In re Estate of Fisher, 
    443 N.J. Super. 180
    , 192
    (App. Div. 2015) (first alteration in original) (quotations and citation omitted).
    When "items in a list are joined by a comma . . . , with an 'or' preceding the
    last item, the items are disjunctive [or] distinct and separate from each other."
    State v. Frank, 
    445 N.J. Super. 98
    , 106 (App. Div. 2016) (quotations and
    citations omitted).
    The phrases "who engages in sexual conduct which would impair or
    debauch the morals of a child" and "who causes the child harm that would
    make the child an abused or neglected child" are separated by a comma and the
    word "or" indicates they are disjunctive and refer to a list of two distinct
    harms. Because N.T. was convicted under the pre-amended N.J.S.A. 2C:24-
    A-1012-18T2
    8
    4(a) of endangering the welfare of a child by abuse or neglect and N.J.S.A.
    2C:52-2(b) specifies that convictions under N.J.S.A. 2C:24-4(a) are barred
    from expungement, the plain language of the statute prevents the
    expungement.
    Despite the unambiguous language, N.T. argues that the intent behind
    the amended N.J.S.A. 2C:52-2(b) and N.J.S.A. 2C:35-14(m) was to strongly
    favor expungement for rehabilitated offenders. We agree that is the legislative
    purpose of the expungement statutes. But the Legislature also included a list
    of numerous crimes that are barred from expungement. N.J.S.A. 2C:52-2(b).
    It unambiguously includes the crime to which N.T. pleaded guilty, in stating
    that any conviction under N.J.S.A. 2C:24-4(a) is barred from expungement.
    There is no limiting language.
    In the 2016 amendment, the Legislature could have specified which
    paragraphs of N.J.S.A. 2C:24-4(a) were subject to the expungement statute's
    bar, and limited N.J.S.A. 2C:52-2(b)'s application to convictions arising from
    sexual conduct or from non-sexual conduct resulting in abuse or neglect. The
    Legislature did not do so. We infer, through well-established law, that the
    omission was intentional. See Ryan v. Renny, 
    203 N.J. 37
    , 58 (2010).
    N.T. also contends that when the Legislature amended N.J.S.A. 2C:24-
    4(a) in 2013, splitting sexual and non-sexual offenses into two subsections, it
    A-1012-18T2
    9
    made clear it was treating the two types of conduct differently. However, the
    two sections numbered (1) and (2) remained under subsection (a).         And,
    through its iterations, N.J.S.A. 2C:52-2(b) has always excluded N.J.S.A.
    2C:24-4(a) from being an expungable offense.
    N.T. has admirably transformed her life. But her achievements cannot
    override the unambiguous expungement statute.        The plain language of
    N.J.S.A. 2C:52-2(b) prohibits the expungement of any conviction under
    N.J.S.A. 2C:24-4(a).
    Affirmed.
    A-1012-18T2
    10
    

Document Info

Docket Number: A-1012-18T2

Filed Date: 12/3/2019

Precedential Status: Precedential

Modified Date: 4/17/2021