IN THE MATTER OF THE EXPUNGEMENT OF THE CRIMINAL RECORDSOF MICHAEL J. DEROSA(02-11-1500, MERCER COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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 binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0481-16T2
IN THE MATTER OF THE
EXPUNGEMENT OF THE
CRIMINAL RECORDS OF
MICHAEL J. DEROSA.
_______________________________
Submitted May 25, 2017 - Decided June 26, 2017
Before Judges O'Connor and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Indictment No.
02-11-1500.
Michael J. DeRosa, appellant pro se.
Angelo J. Onofri, Mercer County Prosecutor,
attorney for respondent State of New Jersey
(Amanda E. Nini, Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Petitioner Michael J. DeRosa appeals from an October 20, 2016
order denying his application for expungement pursuant to N.J.S.A.
2C:52-2(a)(2). We affirm.
The following facts are taken from the record. In 2002,
petitioner worked in a group home where he was responsible for the
care of a severely disabled adult patient. The patient repeatedly
wandered outside of his room. On one occasion, petitioner tied
the patient's wrists above his head and to the bed, where he hung
under the pull of his body weight for over twelve hours, causing
severe nerve damage. The patient also suffered burns when he
slipped from the bed and lay against a nearby heater, unable to
move away because he remained tied. When another worker discovered
the patient the next morning, petitioner denied responsibility for
his actions and refused to obtain medical treatment for the
patient. He also downplayed the patient's injuries as illness-
related, when queried by the patient's mother.
On March 4, 2004, a Mercer County jury convicted petitioner
of criminal restraint.1 He was sentenced to six months of
incarceration, followed by four years of probation, ordered to
perform two hundred and fifty hours of community service and pay
fines and fees totaling $1155. Petitioner served his custodial
sentence, satisfied his monetary and community service
obligations, and was discharged from probation early for good
conduct on July 26, 2007. He subsequently relocated to Florida,
where he resided with his parents and completed his undergraduate
and law degrees. Petitioner was also employed while in school.
1
On appeal, we reversed petitioner's conviction for
endangerment.
2 A-0481-16T2
Upon completing law school, he applied for admission to the Florida
and South Carolina Bars. However, both applications were denied
because of petitioner's criminal record.
As a result, petitioner filed an application on May 12, 2016,
seeking to expunge his criminal record, including the following:
a July 9, 2001 municipal charge for simple assault and harassment,
which had been dismissed; the conviction for criminal restraint;
and a February 4, 2006 arrest and guilty plea to a fighting/
misbehaving municipal ordinance, incurred while on probation.
After a hearing, the trial judge denied petitioner's application.
On appeal, petitioner asserts the following arguments:
I. MISAPPLICATION/MISINTERPRETATION OF THE
LAW
A. THE TRIAL COURT MISINTERPRETS
AND MISAPPLIES THE LAW SET FORTH IN
N.J.S.A. 2C:52-26(a)(2) AND THE
ACCOMPANYING GUIDELINES SET FORTH
BY THE NEW JERSEY SUPREME COURT IN
THE CASE IN RE KOLLMAN.
B. THE TRIAL COURT ERR[ED] BY
IMPROPERLY MINIMIZING, MISUSING,
AND MISCHARACTERIZING THE PETI-
TIONER'S SATISFACTORY PERFORMANCE
OF COMMUNITY SERVICE AS SELF-
SERVING.
C. SATISFACTION OF THE KOLLMAN
COURT FACTORS THAT ARE TO BE WEIGHED
AND BALANCED NEED ONLY BE SATISFIED
TO ORDINARY NOT AN EXCEPTIONAL
LEVEL.
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D. LACK OF COMMUNITY SERVICE IS NOT
ONE OF THE DOMINANT KOLLMAN COURT
FACTORS NOR IS IT THE BASIS FOR A
DENIAL OF EXPUNGEMENT AS LISTED IN
N.J.S.A. 2C:52-14. ALTERNATIVELY,
PERFORMANCE OF COMMUNITY SERVICE IS
ONLY A POSITIVE ENHANCING
CONSIDERATION AND THE ABSENCE OF
WHICH CANNOT BE VIEWED IN A NEGATIVE
LIGHT OR SERVE TO NEGATE OR OVER-
WHELM THE EXISTENCE OF THE DOMINANT
GUIDING BALANCING FACTORS OF THE
KOLLMAN COURT.
II. ABUSE OF DISCRETION AND VIOLATIONS OF DUE
PROCESS.
A. THE TRIAL COURT'S RELIANCE ON
ITS "SENSE" OF THE PETITIONER'S
ACCOUNTABILITY IS MISGUIDED AND ITS
FAILURE TO ACKNOWLEDGE AND UTILIZE
SEVERAL REPORTS FASHIONED BY
INDEPENDENT LICENSED PSYCHOLOGISTS
WHEN FORMING THAT OPINION IS
INAPPROPRIATE AND AN ABUSE OF
DISCRETION.
B. THE TRIAL COURT ABUSES ITS
DISCRETION IN REQUIRING AN
ADMISSION OF GUILT FROM THE
PETITIONER WHICH IS NOT GROUNDS FOR
DENIAL OF AN EXPUNGEMENT PETITION
UNDER N.J.S.A. 2C:52-14.
C. THE TRIAL COURT VIOLATED THE
PETITIONER'S DUE PROCESS RIGHTS IN
ALLOWING UNSUBSTANTIATED EVIDENCE
NOT FOUND IN THE RECORD TO PROVIDE
THE BASIS FOR ITS FACTUAL FINDINGS
AND BY NOT REQUIRING THE OBJECTING
PARTY TO PROVIDE A REASONABLE BASIS
FOR ITS OBJECTIONS.
D. THE TRIAL COURT ERR[ED] BY
FAILING TO SHIFT THE BURDEN TO THE
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STATE TO PRODUCE BY THE PREPOND-
ERANCE OF THE EVIDENCE A NEED FOR
THE AVAILABILITY OF THE PETITION-
ER'S CRIMINAL RECORD.
III. LEGISLATIVE INTENT AND PUBLIC POLICY
VIOLATIONS.
A. A DIRECT COMPARISON OF THE
KOLLMAN AND PETITIONER'S CASES
UNDER THE PUBLIC INTEREST BALANCING
EVALUATION DEMONSTRATES THE TRIAL
COURT['S] CLEAR AND PLAIN ERROR IN
DENYING THE PETITIONER'S PETITION
ACCORDING TO THE LEGISLATIVE INTENT
AND AS A MATTER OF PUBLIC POLICY.
B. THE TRIAL COURT FAILED TO ADHERE
TO THE LEGISLATIVE INTENT OF THE
EXPUNGEMENT LAW UNDER N.J.S.A.
2C:52-32 TO PROVIDE RELIEF TO THE
REFORMED OFFENDER WHO HAS DISASSO-
CIATED FROM UNLAWFUL ACTIVITY.
Relevant to the issues on appeal, petitioner claims the trial
judge improperly weighed the factors set forth in N.J.S.A. 2C:52-
2(a)(2) and misinterpreted the Supreme Court's holding in In re
Kollman, 210 N.J. 557 (2012). Following our review of the
arguments presented in light of the record and applicable law, we
find no abuse of discretion and affirm.
Our review of expungement determinations requires "[w]e
review the [trial] court's balancing of competing factors for
abuse of discretion." Id., supra, 210 N.J. at 577 (citing In re
LoBasso, 423 N.J. Super. 475, 496 (App. Div. 2012)). "Under that
standard, a reviewing court should not substitute its judgment if
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the trial court's ruling was within 'a range of acceptable
decisions.' However, the trial court's interpretation of the law
is not entitled to special deference. We review legal questions
de novo." Id. at 577-78 (citations omitted).
Pursuant to N.J.S.A. 2C:52-2(a)(2), a court may grant a
petitioner expungement when:
at least five years has expired from the date
of . . . conviction, payment of fine,
satisfactory completion of probation or
parole, or release from incarceration,
whichever is later; the person has not been
convicted of a crime, disorderly persons
offense, or petty disorderly persons offense
since the time of the conviction; and the
court finds in its discretion that expungement
is in the public interest, giving due
consideration to the nature of the offense,
and the applicant's character and conduct
since conviction.
"In essence, expungement under the [] 'public interest' prong
initially requires three things: the passage of five years; no
additional convictions; and a finding that expungement is in the
public interest." Kollman, supra, 210 N.J. at 571. The applicant
bears the burden of proving the factors for expungement. Id. at
572-73.
To determine whether expungement is in the public interest
"courts are to consider and balance the 'nature of the offense'
and the 'applicant's character and conduct since conviction.'"
Ibid. "The 'nature of the offense' encompasses undisputed or
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proven facts about the crime and its commission. That certainly
includes basic information about the definition, grade, and
elements of an offense." Id. at 574. "[T]herefore, judges may
also consider details about what the petitioner did, how and with
whom he acted, and the harm he may have caused in connection with
the offense of conviction." Id. at 574-75. "In short, courts
examining how the 'nature of the offense' affects the public
interest have wide latitude." Id. at 575.
To determine an applicant's character and conduct since
conviction, "courts may examine an applicant's performance while
in jail or on probation." Id. at 576.
During and after that time, courts may also
consider whether an applicant
has engaged in activities that have
limited the risk of re-offending, or
has avoided activities that
enhanced the risk [including]
whether a petitioner has obtained
job training or education, complied
with other legal obligations (such
as child support and motor vehicle
fines), and maintained family and
community ties that promote law-
abiding behavior, as well as whether
the petitioner has severed
relationships with persons in the
criminal milieu.
Facts related to an arrest that did not result
in conviction, or to a dismissed charge, may
also offer insight into an applicant's
character and conduct. [In re Lobasso, 423
N.J. Super. 475, 576 (2012).] To assess the
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public interest . . . courts [may] consider
conduct before the time of conviction as well,
to gauge whether the offense was aberrational
or part of a "pattern of disrespect for the
law or a threat to public safety." [Id. at
495.]
. . . .
In practice, trial judges will balance the
above factors as they decide whether
expungement serves the public interest in a
particular case. In doing so, they weigh the
risks and benefits to the public of allowing
or barring expungement. The focus, as the
statute says, is on the "public interest,"
which is broader than the personal desires of
an applicant although the concepts can often
be intertwined.
[Id. at 576-77 (emphasis added) (citations
omitted).]
Here, because there is no dispute that petitioner met the
first two statutory factors, we address his claims the trial judge
abused her discretion in weighing the third public interest factor.
Petitioner asserts he met the public interest factor because he
volunteered for work while in prison, completed his community
service at a church, overcame a learning disability to earn his
undergraduate and law degrees, and cared for his ailing parents.
He also argues the evidence proves he will not re-offend.
Specifically, he highlights the lack of other criminal
convictions, a character reference letter from his sister, a mental
health evaluation he obtained for purposes of seeking an
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accommodation to take the Florida Bar Examination, and two letters
from a mental health counselor and a neuropsychologist for
admission to the South Carolina Bar.
Petitioner likens his case to the facts in Kollman and argues
the trial judge here failed to consider evidence of his good
character and conduct since the conviction. Specifically, he
points to his completion of two hundred and fifty hours of
community service as a part of his sentence and "over 120 hours
of pro bono work, while in law school, and one year of volunteer
work done at the Florida State University Public Interest Law
Center." Petitioner also challenges the trial judge's finding he
lacked remorse and accountability for his actions, claiming the
judge ignored his expressions of remorse during his testimony at
the expungement hearing.
Our review of the trial judge's findings lead us to conclude
she did not abuse her discretion. First, the record demonstrates
the judge considered the nature of petitioner's offense and its
gravity. She recited petitioner's criminal history, including his
arrest and guilty plea to a municipal ordinance while on probation.
She also considered and rejected petitioner's assurances he would
not re-offend because he did not intend to return to the health
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care field again,2 noting there are no conditional expungements
under the statute.
Second, the judge acknowledged the strides petitioner made
in obtaining an education for the stated purpose to "give back."
She further addressed petitioner's pro bono work during law school
and the difficulties a criminal record imposes on the ability to
obtain employment. However, the judge noted petitioner's
education materially benefitted him and his family, not the public
interest.
This finding dovetailed with the judge's finding petitioner
lacked remorse. The judge traced a common theme, beginning with
the presentencing report, which noted his intent to appeal the
conviction. The judge interpreted this as an "air of, I'm sorry
for what happened but [I am] not taking responsibility for what
happened." The judge found the arguments raised in the expungement
petition bore the same "air," noting petitioner continued to
deflect responsibility by arguing a lack of evidence to support
the conviction. The judge found this demonstrated a lack of
remorse. Referring to the facts underlying his conviction for
2
We note, notwithstanding petitioner's assurance to remain out
of the health care field, his intent to become an attorney at law
will, by necessity, expose him to a similarly situated subset of
vulnerable individuals, whether it be through pro bono service or
in the representation of clientele enduring difficult
circumstances.
10 A-0481-16T2
criminal restraint, she stated: "And when you say there's no
evidence for 12 hours, you don't remember that. Well it's in the
Appellate Division's decision because they talk about the evidence
that was presented at trial."
Having considered petitioner's claims on this record, we are
unable to conclude the judge abused her discretion in weighing the
statutory factors. The record supports the judge's findings
petitioner's conviction was not, as the Kollman Court stated,
merely "a minor brush with the criminal justice system." Kollman,
supra, 210 N.J. at 568. The gravity of petitioner's offense, his
disruptive conduct during probation, and his attitude demonstrate
otherwise.
Lastly, the trial judge properly exercised her discretion in
weighing evidence purporting to corroborate petitioner's character
and conduct since his conviction. As she noted, the mental health
evaluations attached in support of petitioner's expungement
application do not address his conduct, insight and remorse over
his past conduct. Instead, the documents address petitioner's
mental health condition in connection with a separate assault he
suffered, a request for clemency, and a request for a testing
accommodation for the Florida and South Carolina Bar examinations.
These materials are irrelevant to an evaluation of his character
and conduct as they relate to his conviction. Moreover, a review
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of the sentencing and expungement hearing transcripts demonstrate
the gravamen of petitioner's testimony was not to express remorse
to the victim and his family, but instead remorse over the impact
petitioner's wrongdoing has had on himself, his family, and his
future.
On the matter of character and conduct, petitioner likens his
circumstances to those in Kollman, but we fail to see any analogy.
Indeed, the Kollman Court noted:
Kollman offered proof that he completed
college and received a Bachelor of Science
degree from the Richard Stockton College of
New Jersey in May 2009. He also certified
that he worked full-time while in school and
had become active in various community service
projects.
Petitioner also submitted twenty-one letters
to the court. His employer for sixteen years
described him as a hard-working leader and a
role model to others. The employer credited
Kollman for accepting responsibility and
taking steps to improve himself and deter
others after his conviction. The District
Director for the Boy Scouts of America praised
Kollman and his family for hosting annual toy
drives to help underprivileged families and
teenagers with alcohol and drug abuse
problems. Kollman also served on the district
board of directors of a scholarship committee
for scouting. Several other community groups
submitted letters as well. In addition,
various attorneys, friends, and family members
wrote about Kollman's strong character and
personal growth in recent years.
In Kollman's certification, he added that he
had had no trouble with the law since his
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conviction -- not even a speeding ticket.
However, he explained that because of his
criminal record, he could not teach a boating
and safety certificate class, as he had done
previously for three to four years, could not
help coach wrestling at high school, as he had
done before as well, and could not accept an
offer to work with the Big Brothers Big
Sisters program as a volunteer.
[Id. at 564-65.]
Although we do not require every applicant seeking
expungement to replicate the exact facts in Kollman, the facts
here are inapposite to those in Kollman, where the petitioner's
post-conviction character and conduct exuded a singular aim of
service to others. Petitioner's conduct falls short of the mark,
and is not outweighed by his limited pro bono employment during
law school. Instead it demonstrates, as the Kollman Court stated,
a motivation to serve his narrower "personal desires." The balance
of petitioner's arguments are without sufficient merit to warrant
a discussion in a written opinion. Rule 2:11-3(e)(1)(E).
Affirmed.
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