In the Matter of the Expungement Petition

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
In the Matter of the Expungement Petition of J.S. (A-84-13) (073376)
In the Matter of the Expungement of the Criminal Records of G.P.B. (A-2-14) (074541)
Argued March 2, 2015 -- Decided August 10, 2015
PATTERSON, J., writing for a majority of the Court.
In these appeals, the Court determines whether N.J.S.A. 2C:52-2(a), which permits the expungement of a
conviction for certain indictable offenses if the person “has been convicted of a crime . . . and . . . has not been
convicted of any prior or subsequent crime,” bars expungement of the convictions of a defendant who pleads guilty
in a single proceeding to multiple offenses that were committed within a short period of time.
J.S. is a thirty-four-year-old former New Jersey resident, who, in 2000, while a sophomore at Kean
University, was arrested after twice selling marijuana to an undercover police officer during a five-day period. The
first sale occurred on June 16, 2001, and involved 25.2 grams of marijuana. The second sale occurred on June 21,
2001, and involved 100 grams of marijuana. J.S was arrested and charged with nine offenses. On May 29, 2001, he
pled guilty to a fourth-degree distribution charge arising from the June 16 sale, and a third-degree distribution
charge arising from the June 21 sale. J.S. was sentenced to a three-year term of noncustodial probation. Five years
after completing his sentence, he filed the expungement petition that is the subject of this appeal.
The trial court granted J.S.’s petition, reasoning that his two offenses were a “single spree” that, under In re
Fontana, 146 N.J. Super. 264, 267 (App. Div. 1976), constituted a solitary “crime.” In an unpublished opinion, the
Appellate Division reversed. Finding that the court’s reliance on Fontana was misplaced because that case applied
an earlier version of the expungement statute, the panel adopted the reasoning of In re Ross, 400 N.J. Super. 117,
123 (App. Div. 2008), in which the Appellate Division applied the current statute and rejected the “one-night spree”
concept. Under N.J.S.A. 2C:52-2(a), the panel concluded that J.S.’s two offenses were “prior or subsequent” to one
another, thus barring expungement. This Court granted J.S.’s petition for certification. 217 N.J. 304 (2014).
G.P.B. is a fifty-two-year-old New Jersey resident and business owner, who, on April 19 and 20, 1999,
committed several offenses in support of a scheme to offer illegal gifts to local officials in a particular municipality,
in order to obtain a public contract for his business and a specific vote on a municipal resolution. G.P.B. pled guilty
to four offenses: one count of third-degree conspiracy to offer gifts to a public servant and three counts of third-
degree offering gifts to a public servant. He was sentenced to a county correctional facility for thirty days and
ordered to perform 100 hours of community service and pay a $10,000 fine. G.P.B. petitioned for expungement on
November 26, 2012, approximately ten years after his convictions.
The trial court granted G.P.B.’s petition, reasoning that his crimes were all part of a continuing conspiracy
to influence a governing body and achieve a single aim, and that the conspiracy linked the charges together as one
“crime” under N.J.S.A. 2C:52-2(a). In a published opinion, the Appellate Division reversed. In re G.P.B., 436 N.J.
Super. 48, 52 (App. Div. 2014). The panel rejected the argument that the one-night spree concept of Fontana
applied to the language of the current statute governing expungement of indictable offenses. Noting that G.P.B. had
pled guilty to four offenses committed on two separate days, the panel concluded that he was not entitled to
expungement. This Court granted G.P.B.’s petition for certification. 219 N.J. 630 (2014).
HELD: The plain language of N.J.S.A. 2C:52-2(a) precludes expungement of convictions when the petitioner has
been convicted of multiple crimes, even when those crimes occurred within a short span of time.
1. The Legislature intended the expungement statute to provide relief to one-time offenders who have dissociated
themselves with unlawful activity. As the law has changed over time, the Legislature has consistently strived to
limit expungement to offenders who have committed no more than an isolated infraction in an otherwise law-
abiding life. As originally enacted in 1931, and as amended in 1936, the statute permitted expungement when the
offender had been convicted only once and “no subsequent conviction” had been entered against him or her. A later
version of the statute with similar language was the subject of the Appellate Division’s analysis in In re Fontana,
146 N.J. Super. 264, 267 (App Div. 1976), wherein the panel imported from sentencing law the concept of a “one-
night spree” in order to expunge the conviction of a defendant who had pled guilty to ten thefts committed over a
nine-day period. Three years after Fontana, in 1979, the Legislature combined various expungement provisions into
Chapter 52 of the new Code of Criminal Justice. At the same time, it amended the language identifying the
requirements for expungement when by enacting N.J.S.A. 2C:52-2. Instead of the former requirement that “no
subsequent conviction has been entered against” the petitioner, N.J.S.A. 2A:164-28 (repealed 1979), the Legislature
limited expungement to offenders who have not “been convicted of any prior or subsequent crime,” N.J.S.A. 2C:52-
2(a). (pp. 12-17)
2. Since the enactment of N.J.S.A. 2C:52-2(a), this Court has not applied the text to a case involving multiple
offenses committed over a short period of time and adjudicated in a single conviction. The first published appellate
opinion analyzing in detail the revised “prior or subsequent crime” language of N.J.S.A. 2C:52-2(a) was In re Ross,
400 N.J. Super. 117, 120-24 (App. Div. 2008), wherein the panel determined that the words “prior” and
“subsequent” modify the term “crime,” not the term “conviction.” Consequently, the panel rejected the Fontana
holding, concluding that two crimes committed on separate occasions are precluded from expungement regardless of
whether they carried a single date of conviction. Two years after the decision in Ross, the Legislature amended the
expungement law to broaden opportunities for expungement in limited situations, such as when in the public interest
or for certain third- and fourth-degree drug offenses. At that time, the Legislature neither altered the “prior or
subsequent crime” language of N.J.S.A. 2C:52-2(a), nor abrogated the holding in Ross. (pp. 18-21)
3. The Court reviews the trial courts’ applications of N.J.S.A. 2C:52-2(a) to the expungement petitions of J.S. and
G.P.B. de novo. In effectuating the legislative intent of the statute, the Court first looks to its plain language,
applying the words’ ordinary meanings and construing them within the context of the surrounding provisions in a
way that would not produce an absurd result. The plain language of the statute authorizes expungement of “a
crime,” not one or more crimes closely related in circumstances or time, while excluding those petitioners who have
been “convicted of any prior or subsequent crime.” The adjectives “prior or subsequent” modify “crime,” not
“conviction.” Moreover, the 1979 change in the statutory language from “subsequent conviction” to “any prior or
subsequent crime” implies a purposeful alteration in the substance of the law. Thus, although N.J.S.A. 2C:52-2(a)
permits expungement of a single conviction arising from multiple offenses if those offenses occurred as part of a
single, uninterrupted criminal event, the provision’s plain language shows that the Legislature clearly intended to bar
expungement when the 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. (pp. 21-29)
4. The plain language of N.J.S.A. 2C:52-2(a) does not permit the expungement of the convictions of either
petitioner in these appeals. J.S. committed two offenses five days apart. Although similar in nature, they were not
committed as part of a single, uninterrupted criminal event. Instead, each was a discrete “crime” within the meaning
of N.J.S.A. 2C:52-2, and the second offense was “subsequent” to the first, thereby rendering J.S. ineligible for
expungement. G.P.B. committed his offenses within a short time frame, as well as all in furtherance of the same
conspiracy. However, each offense consisted of a separate criminal event. Consequently, G.P.B. also is ineligible
for expungement since his crimes, although related, were “prior” and “subsequent” to each other. (pp. 29-30)
5. Although the dissent invokes policy arguments in support of broader access to the remedy of expungement, the
majority notes that the Court’s role is to construe the statute, not to pass judgment on the wisdom of the law or
render an opinion as to its representation of social policy. To that end, should the Legislature determine that
expungement should be available to offenders such as petitioners, convicted of multiple crimes that occurred in
close succession but not concurrently, it may amend N.J.S.A. 2C:52-2 to effect that intent. (pp. 30-31)
The judgment of the Appellate Division is AFFIRMED.
JUSTICE LaVECCHIA, DISSENTING, joined by JUSTICE ALBIN, expresses the views that the
majority’s interpretation of N.J.S.A. 2C:52-2(a) is too restrictive given that the statutory language is susceptible to
more than one plausible construction, and that, given the expungement statute’s remedial purpose, a more generous
reading is appropriate until such time as the Legislature has spoken with sufficient clarity on this issue.
CHIEF JUSTICE RABNER, JUSTICES FERNANDEZ-VINA and SOLOMON, and JUDGE CUFF
(temporarily assigned) join in JUSTICE PATTERSON’s opinion. JUSTICE LaVECCHIA filed a separate
dissenting opinion, in which JUSTICE ALBIN joins.
2
SUPREME COURT OF NEW JERSEY
A-84 September Term 2013
073376
A-2 September Term 2014
074541
IN THE MATTER OF THE
EXPUNGEMENT PETITION OF J.S.
IN THE MATTER OF THE
EXPUNGEMENT OF THE
CRIMINAL RECORDS OF G.P.B.
Argued March 2, 2015 – Decided August 10, 2015
On certification to the Superior Court,
Appellate Division. (A-84-13, In the Matter
of the Expungement Petition of J.S.)
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 436 N.J. Super. 48 (App. Div.
2014). (A-2-14, In the Matter of the
Expungement of the Criminal Records of
G.P.B.)
Mark P. Stalford argued the cause for
appellant J.S.
Gerald Krovatin argued the cause for
appellant G.P.B. (Krovatin Klingeman,
attorneys; Mr. Krovatin and Ernesto
Cerimele, on the brief).
Ian D. Brater, Special Deputy Attorney
General Acting Assistant Prosecutor, argued
the cause for respondent State of New Jersey
(Christopher J. Gramiccioni, Acting Monmouth
County Prosecutor, attorney).
1
Kelly Anne Shelton, Assistant Prosecutor,
argued the cause for respondent State of New
Jersey (Richard T. Burke, Warren County
Prosecutor, attorney).
JUSTICE PATTERSON delivered the opinion of the Court.
These appeals present a question of statutory
interpretation. The Court construes N.J.S.A. 2C:52-2(a), a
component of the statutory scheme that authorizes the
expungement of the records of certain criminal convictions under
conditions established by the Legislature. That provision
permits the expungement of a conviction for certain indictable
offenses if the petitioner “has been convicted of a crime . . .
and . . . has not been convicted of any prior or subsequent
crime[.]” N.J.S.A. 2C:52-2(a). The Court determines whether
the statutory language bars expungement of the convictions of a
defendant who pleads guilty in a single proceeding to multiple
offenses that were committed within a short period of time.
Petitioner J.S. pled guilty to two drug offenses committed
within five days of one another. Petitioner G.P.B. pled guilty
to four offenses arising from his attempt, in several
communications over a two-day period, to offer political
contributions to public officials in exchange for an award of
public contracts or a negative vote on a municipal resolution.
After serving their sentences, both petitioners sought
expungement of their criminal records. In each proceeding, the
2
trial court granted the expungement petition, reasoning that
each petitioner’s closely-related offenses constituted a single
“crime” within the meaning of N.J.S.A. 2C:52-2(a). In each
case, an appellate panel reversed the trial court’s
determination, construing N.J.S.A. 2C:52-2(a) to bar expungement
when the petitioner committed multiple offenses on separate
occasions, even when those offenses occurred in quick
succession.
We affirm the Appellate Division’s decisions in both
appeals. We construe the plain language of N.J.S.A. 2C:52-2(a)
to preclude expungement when the petitioner has been convicted
of multiple crimes, even when those crimes occurred within a
short span of time. Our interpretation of N.J.S.A. 2C:52-2(a)
is supported by the Legislature’s decision to amend the statute
following an Appellate Division decision that permitted
expungement of multiple convictions arising from a short-term
“spree” of offenses. We conclude that, as it is currently
drafted, N.J.S.A. 2C:52-2(a) does not authorize expungement of
the criminal records of individuals who are in the position of
petitioners. If the Legislature determines that expungement
should be available to such individuals, it can amend the
statute to clarify its intent in that regard.
I.
A.
3
J.S. is a thirty-four-year-old former New Jersey resident,
who now lives in Florida. Before moving, he worked as a manager
in the health care field. In June 2000, when J.S. was a
sophomore at Kean University, he was arrested after twice
selling marijuana to an undercover police officer during a five-
day period. The first sale occurred on June 16, 2001, and
involved 25.2 grams of marijuana. The second sale occurred on
June 21, 2001, and involved 100 grams of marijuana.1
J.S. was arrested and charged with a total of nine
offenses: one count of second-degree distribution of a
controlled dangerous substance (CDS) while on or within five
hundred feet of a public park, N.J.S.A. 2C:35-7.1(a); two counts
of third-degree possession of a CDS with intent to distribute
while on or within 500 feet of a public park, N.J.S.A. 2C:35-
7.1(a); one count of third-degree possession of a CDS with
intent to distribute, N.J.S.A. 2C:35-5(b)(11); one count of
third-degree distribution of a CDS, N.J.S.A. 2C:35-5(b)(11); one
count of third-degree distribution of a CDS while on or within
500 feet of a public park, N.J.S.A. 2C:35-7.1(a); one count of
fourth-degree possession of a CDS with intent to distribute,
N.J.S.A. 2C:35-5(b)(12); one count of fourth-degree distribution
1 J.S. represented in his affidavit in support of his petition
for expungement that his arrests followed a “horrible decision”
to obtain marijuana for a “co-worker” in transactions which
generated no profit.
4
of a CDS, N.J.S.A. 2C:35-5(b)(12); and one count of fourth-
degree possession of a CDS, N.J.S.A. 2C:35-10(a)(3). J.S. was
also issued a summons charging him with two counts of disorderly
persons marijuana possession, N.J.S.A. 2C:35-10(a)(4). Four of
the charges arose from J.S.’s sale of marijuana on June 16,
2001, and the remaining five charges arose from J.S.’s sale of
marijuana on June 21, 2000.
On May 29, 2001, J.S. pled guilty to a fourth-degree
distribution charge, arising from his June 16, 2001 sale of
marijuana, and to a third-degree distribution charge, arising
from his June 21, 2000 sale of marijuana. Thus, J.S.’s
convictions arose from two drug distribution offenses that
involved small quantities of marijuana and occurred five days
apart. J.S. was sentenced to a three-year term of noncustodial
probation. He completed his sentence on February 8, 2007, and
has paid the fees assessed by the sentencing court.
Five years after completing his sentence, J.S. filed the
expungement petition that is the subject of this appeal. He
stated in his supporting affidavit that he was interested in
pursuing a nursing degree, but had not yet applied to nursing
school because he anticipated that his criminal record would bar
a career in nursing. The State opposed the petition, arguing
that J.S. was not eligible for expungement because his
convictions arose from two offenses committed five days apart.
5
The trial court held a hearing and granted J.S.’s
expungement petition. It reasoned that J.S.’s two offenses
constituted a “single spree,” and that under the Appellate
Division’s decision in In re Fontana, 146 N.J. Super. 264, 267
(App. Div. 1976), those offenses constituted a solitary “crime.”
The trial court concluded that J.S. had no conviction for a
“prior or subsequent crime” for purposes of N.J.S.A. 2C:52-2(a).
Because only five years had passed since the completion of
J.S.’s sentence of probation, he was ineligible for expungement
under the original version of N.J.S.A. 2C:52-2(a), which
mandates a ten-year period before an offender may seek
expungement. Instead, the trial court granted J.S.’s petition
under two provisions added to the statute in a 2010 amendment.
See L. 2009, c. 188. The court found that J.S. satisfied the
“public interest” prong of N.J.S.A. 2C:52-2(a)(2), which
requires “the passage of five years[,] no additional
convictions[,] and a finding that expungement is in the public
interest,” In re Kollman, 210 N.J. 557, 571 (2012). The trial
court also relied on N.J.S.A. 2C:52-2(c), which permits
expungement of a conviction for the sale of twenty-five grams of
marijuana or less despite the general bar on expungement of
convictions “for the sale or distribution of a [CDS] or
possession thereof with intent to sell[.]” N.J.S.A. 2C:52-
2(c)(1). The court ordered that J.S.’s criminal record be
6
expunged, subject to limitations and exceptions set forth in the
expungement statute, N.J.S.A. 2C:52-1 to -32.
The State appealed. In an unpublished opinion, the
Appellate Division reversed the trial court’s order of
expungement. The panel held that the trial court had improperly
relied on Fontana, supra, 146 N.J. Super. at 267, because
Fontana applied an earlier version of the expungement statute,
N.J.S.A. 2A:164-28, containing language distinct from that of
N.J.S.A. 2C:52-2(a). Instead, the panel adopted the reasoning
of another appellate panel, applying the current expungement
statute and rejecting the “one-night spree” concept. See In re
Ross, 400 N.J. Super. 117, 123 (App. Div. 2008). Deeming the
statutory text clear and unambiguous, the panel held that J.S.’s
two offenses were “prior or subsequent” to one another, thus
barring expungement in his case.
We granted certification. 217 N.J. 304 (2014).
B.
Petitioner G.P.B. is a fifty-two-year-old New Jersey
resident. He owns an environmental planning and land
development consulting company. On April 19 and 20, 1999,
G.P.B. committed several offenses in support of a scheme to
offer illegal gifts to local officials in a particular
municipality, in order to obtain a public contract for his
business and a specific vote on a municipal resolution.
7
On April 19, 1999, G.P.B. and another individual had
several conversations in furtherance of a conspiracy to carry
out this scheme. G.P.B. and his co-conspirator spoke by
telephone with the town’s mayor, and offered him a $24,000
contribution to his county political party. In exchange, the
mayor was asked to select G.P.B.’s company for several public
contracts. In the alternative, G.P.B. and his co-conspirator
offered the mayor a $10,000 contribution in exchange for
selecting the company for all but one of the municipal
contracts.
The same day, G.P.B. and his co-conspirator spoke by
telephone in separate conversations with two members of the town
council in the same municipality. G.P.B. offered each of the
council members a $5000 campaign contribution in exchange for a
negative vote on a municipal resolution, which would have
awarded a contract to a competing business. The resolution was
scheduled to be voted on the following day.
On April 20, 1999, the day of the scheduled vote, G.P.B.
advised at least one of the council members that he would be
provided with part of the money in advance of the vote. One of
the officials contacted the county prosecutor, and G.P.B. was
promptly arrested.
The State charged G.P.B. with four offenses: one count of
third-degree conspiracy to offer gifts to a public servant and
8
three counts of third-degree offering gifts to a public servant,
N.J.S.A. 2C:5-2, -11; N.J.S.A. 2C:27-6(b) (repealed 2003). In
September 1999, G.P.B. pled guilty to all four offenses. He was
sentenced to a county correctional facility for a term of thirty
days, to be served on weekends. He was also required to serve
100 hours of community service and fined $10,000. He paid his
fine immediately, and completed his sentence of incarceration
and his community service on November 1, 2002.
G.P.B. filed his petition for expungement on November 26,
2012, approximately ten years after his convictions. He argued
that for purposes of N.J.S.A. 2C:52-2(a), his offenses comprised
a single “crime” committed over a forty-eight hour period,
rather than a series of separate offenses. The State opposed
G.P.B.’s petition for expungement, arguing that each of G.P.B,’s
acts constituted a distinct crime and that his offenses were not
consolidated into a single crime by virtue of the admitted
conspiracy. The State maintained that G.P.B. did not meet the
requirements of N.J.S.A. 2C:52-2(a).
The trial court granted G.P.B.’s expungement petition. It
reasoned that G.P.B.’s crimes were all part of a continuing
conspiracy to influence a governing body and achieve a single
aim. The trial court viewed the admitted conspiracy between
G.P.B. and the second individual as linking the charges together
as one “crime” for purposes of N.J.S.A. 2C:52-2(a).
9
In a published opinion, the Appellate Division reversed the
trial court’s grant of G.P.B.’s expungement petition. In re
G.P.B., 436 N.J. Super. 48, 52 (App. Div. 2014). The panel
rejected the argument that the one-night “crime-spree” concept
of Fontana, supra, 146 N.J. Super. at 267, applied to the
language of the current statute governing expungement of
indictable offenses, N.J.S.A. 2C:52-2. Id. at 51. Noting that
G.P.B. had pled guilty to four offenses on two different days,
it concluded that he was not entitled to expungement. Id. at
50, 52.
We granted G.P.B.’s petition for certification. 219 N.J.
630 (2014).
II.
A.
In support of his appeal, J.S. invokes the legislative
purpose of the expungement statute: to assist the “one-time
offender” who has led an otherwise lawful existence. N.J.S.A.
2C:52-32. He argues that the concept of a “one-time offender”
is not limited to the individual who has committed only a single
unlawful act. J.S. asserts that the term “one-time offender”
encompasses an individual convicted of acts that constitute a
continuing course of conduct, or crime “spree.” He urges the
Court to apply the principle set forth by the Appellate Division
10
in Fontana, on the ground that Fontana furthers the
rehabilitative goal of the expungement law.
The State argues that J.S.’s reliance on Fontana is
misplaced. It asserts that the language of N.J.S.A. 2C:52-2(a)
plainly excludes a petitioner who has committed multiple crimes
in a single “spree.” Although the State urges the Court to
affirm the Appellate Division’s determination, it takes issue
with the Appellate Division’s view that N.J.S.A. 2C:52-2(a) may
permit expungement of multiple crimes committed on the same
date. To the State, the “prior or subsequent crime” language of
the statute evinces the Legislature’s intent to limit
expungement to offenders convicted of a single crime, no matter
how close in time that crime might be to another offense. It
contends that J.S., convicted of two offenses five days apart,
is clearly outside of the parameters of N.J.S.A. 2C:52-2(a).
B.
G.P.B. does not urge the Court to adopt the Appellate
Division’s approach in Fontana or to recognize a crime “spree”
as a sole offense in applying N.J.S.A. 2C:52-2(a). Instead,
G.P.B. argues for a construction of the statute that would
permit the expungement of multiple, interdependent crimes
committed concurrently over a single twenty-four-hour period as
part of a unitary scheme. He focuses on his conviction for
conspiracy, arguing that the conspiracy and its overt acts
11
constitute a single offense, and that he committed no “prior” or
“subsequent” crime.
The State relies on Ross, supra, 400 N.J. Super. at 117, to
counter G.P.B.’s construction of N.J.S.A. 2C:52-2(a). It argues
that because G.P.B. offered gifts to three different public
officials in three separate conversations, he cannot be viewed
as a “one-time offender” who committed a single crime. N.J.S.A.
2C:52-32. The State characterizes each of the four offenses at
issue to be a distinct offense with a “prior” crime, a
“subsequent” crime, or both in G.P.B.’s record. It urges the
Court to affirm the Appellate Division’s determination.
III.
A.
The expungement statute at the heart of these appeals
serves “to eliminate ‘the collateral consequences imposed upon
otherwise law-abiding citizens who have had a minor brush with
the criminal justice system.’” Kollman, supra, 210 N.J. at 568
(quoting In re T.P.D., 314 N.J. Super. 643, 648 (Law Div. 1997),
aff’d o.b., 314 N.J. Super. 535 (App. Div. 1998)). The
Legislature intended the statute to “provid[e] relief to the
one-time offender who has led a life of rectitude and
disassociated himself with unlawful activity[.]” N.J.S.A.
2C:52-32.
12
From the first iteration of New Jersey’s expungement laws
to the current statutory language, the Legislature has
consistently strived to limit expungement to offenders who have
committed no more than an isolated infraction in an otherwise
law-abiding life. As originally enacted in 1931, and as amended
in 1936, the statute required that the offender have been
convicted only once, and that “no subsequent conviction has been
entered against” the offender. L. 1931, c. 345, § 1; L. 1936,
c. 174, § 1.2 As explained in the legislative history of the
1936 amendment,
[t]he purpose of this act is to assist only
those persons who have one single conviction
against them, and from the time of the
conviction and for a period of ten years
thereafter have lived exemplary lives during
that time and are able to show by their
petition that they have made a complete moral
change.
[Sponsor’s Statement to Assemb. 293 (Feb.
10, 1936).]
A later version of the statute with similar language --
permitting expungement if the offender has “a criminal
conviction” with a suspended sentence or fine, but “no
2 The 1931 statute was limited to offenders whose sentences were
suspended and as to whom twenty years had passed since the
conviction. L. 1931, c. 345, § 1. The 1936 version expanded
the reach of the statute to include cases in which a “minor fine
[was] imposed” and more than ten years had elapsed since the
offender’s conviction. L. 1936, c. 174, § 1.
13
subsequent conviction” entered against him or her -- appeared in
the statute until the Legislature’s 1979 reorganization of the
Criminal Code. N.J.S.A. 2A:164-28 (repealed 1979).3
That statutory language was the subject of the Appellate
Division’s analysis in Fontana, supra, 146 N.J. Super. at 267.
There, the defendant pled guilty in one plea hearing to ten
thefts committed during a nine-day period in February and March
of 1962. Ibid. Reasoning that the statute’s purpose of
“providing an incentive for rehabilitation of a person convicted
of crime” would be furthered by expungement, the Appellate
Division imported from sentencing law the concept of a “one-
night spree”:
The crimes which form the basis of the
convictions all involved the same participants
and were committed within a comparatively
short time. The judgments of conviction on
the pleas of guilty were all entered on the
same day. The criminal conduct can be viewed
as akin to a “one[-]night spree[,]” which has
generally received special consideration in
sentencing, State v. McBride, 127 N.J.
3 Between the 1936 amendment and the Legislature’s 1979
reorganization of the Criminal Code, the expungement statute was
amended several times without revision to this language: once
in 1937, R.S. 2:192-15 (establishing fee payable by petitioner),
once in 1952, see N.J.S.A. 2A:164-28 (repealed 1979), L. 1951,
c. 344 (increasing fine amount to $1000), and once in 1976, L.
1975, c. 383 (revising list of eligible crimes, eliminating
requirement that conviction result in suspended sentence or
fine, and running ten-year expungement timeline from later of
conviction or release from imprisonment or parole). Accord
State v. Hawthorne, 49 N.J. 130, 138-39 (1967) (discussing
evolution of early expungement statute), overruled on other
grounds by State v. Sands, 76 N.J. 127, 147 (1978).
14
Super. 399 (App. Div. 1974), aff’d 66 N.J. 577
(1975), and the convictions as one conviction
within the intent and meaning of the statute.
Cf. State v. McCall, 14 N.J. 538 (1954); State
v. Johnson, 109 N.J. Super. 69 (App. Div.
1970).
[Id. at 267.]4
Three years after Fontana, as part of a comprehensive
reform of the Criminal Code, the Legislature combined previous
expungement provisions that were found in different criminal
statutes with “others dealing with drug and juvenile offenses
into a single chapter, Chapter 52 of the new Code of Criminal
Justice.” State v. A.N.J., 98 N.J. 421, 425 (1985) (citing L.
4 The sentencing decisions cited by the Fontana panel in its
application of a “one-night spree” concept to the expungement
statute do not buttress the panel’s conclusion. In McBride,
supra, the court mentioned that the crimes at issue were
committed in “one night’s spree,” but it based its reduction of
the defendant’s sentence on his “age and immaturity, including
his cooperation with the police, and his pleas of guilty[.]”
127 N.J. Super. at 402. The Court in McCall, supra, did not
discuss the concept of a one-night spree. 14 N.J. 538. There,
this Court held that convictions for multiple offenses on the
same day constituted a single conviction on “separate occasions”
for purposes of N.J.S.A. 2A:85-12, a habitual-offender statute
governing offenders sentenced for an offense after being
“convicted on 3 separate occasions of high misdemeanors[.]” Id.
at 544, 546-48 (internal quotation marks omitted). Johnson,
supra, similarly involved a sentencing issue unrelated to the
concept of a one-night spree; there, the Appellate Division held
that, under the plain language of the Uniform Narcotic Drug Law,
N.J.S.A. 24:18-47 (repealed 1971), a defendant who committed a
second violation of that statute before being convicted of his
first offense should be sentenced as a first offender, not a
second offender. 109 N.J. Super. at 78. These decisions do not
support the Fontana panel’s construction of the expungement
statute then in effect, N.J.S.A. 2A:164-28 (repealed 1979).
15
1979, c. 178). The legislative committees reviewing the
amendment stated that the revised Chapter 52 “spells out an
equitable system of expungement of indictable and nonindictable
convictions, as well as of arrest records,” and “provides for a
practical administrative procedure” to isolate, but not destroy,
expunged records. S. Judiciary Comm. Statement to S. 3203, at
11 (June 18, 1979); Assemb. Judiciary, Law, Pub. Safety &
Defense Comm. Statement to Assemb. 3279, at 16 (June 28, 1979).
In the revised expungement statute, the Legislature
established a procedure for the filing and determination of a
petition for expungement. L. 1979, c. 178 (codified at N.J.S.A.
2C:52-1 to -32). When a court grants an expungement petition,
“criminal records are extracted and isolated, but not
destroyed.” Kollman, supra, 210 N.J. at 568 (citations
omitted). For most purposes, following expungement, “the
arrest, conviction and any proceedings related thereto shall be
deemed not to have occurred[.]” N.J.S.A. 2C:52-27. However,
expunged records may be used in limited settings. See N.J.S.A.
2C:52-17 to -23, -27 (identifying permitted uses of expunged
records); State v. XYZ Corp., 119 N.J. 416, 421 (1990) (noting
that “a central purpose of the [1979] expungement statute was to
‘broaden[] the reliable base of information that will be
maintained for law enforcement’” (quoting A.N.J., supra, 98 N.J.
at 427-28)).
16
Significantly, the Legislature amended the language
identifying the requirements for expungement when it enacted
N.J.S.A. 2C:52-2, governing the expungement of 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, whether within this State or any other
jurisdiction, and has not been adjudged a
disorderly person or petty disorderly person
on more than two occasions 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, present a duly verified
petition as provided in section 2C:52-7 to the
Superior Court in the county in which the
conviction was entered praying that such
conviction and all records and information
pertaining thereto be expunged.
[N.J.S.A. 2C:52-2(a); L. 1979, c. 178, § 109.]
Thus, instead of the former requirement that “no subsequent
conviction has been entered against” the petitioner, see, e.g.,
N.J.S.A. 2A:164-28 (repealed 1979), the Legislature limited
expungement to offenders who have not “been convicted of any
prior or subsequent crime,” N.J.S.A. 2C:52-2(a). The
Legislature did not comment on the purpose of that amendment to
the statutory text. S. Judiciary Comm. Statement to S. 3203,
supra, at 11; Assemb. Judiciary, Law, Pub. Safety & Defense
Comm. Statement to Assemb. 3279, supra, at 16.
17
In the decades since the enactment of N.J.S.A. 2C:52-2(a),
this Court has not applied the statutory text to a case
involving multiple offenses committed over a short period of
time and adjudicated in a single conviction. The issue now
before us was not raised in A.N.J., supra, 98 N.J. at 427, in
which the Court applied a different provision of the expungement
law, N.J.S.A. 2C:52-3, to a defendant with multiple disorderly
persons offenses. In comparing the expungement provision for
disorderly persons offenses with N.J.S.A. 2C:52-2(a)’s treatment
of indictable offenses, the Court commented that “[b]y making
its disqualifier for another ‘crime’ both retrospective and
prospective, the Legislature has frozen the rights of the two-
time criminal.” A.N.J., supra, 98 N.J. at 424-27. Following
that statement, the Court observed in a footnote, “[w]e need not
cast doubt upon the view that a ‘one-night spree’ could still
constitute a one-time offense.” Id. at 427 n.3 (citing Fontana,
supra, 146 N.J. Super. at 267). However, because A.N.J.
involved disorderly persons offenses addressed by N.J.S.A.
2C:52-3, rather than a conviction arising from multiple
indictable offenses committed within a short period of time
under N.J.S.A. 2C:52-2(a), the Court’s holding did not address
the issue that is presented by this appeal. Id. at 427; see
also In re J.N.G., 244 N.J. Super. 605, 609 n.2 (App. Div. 1990)
(citing Fontana and noting that “[t]he State does not question
18
that the three convictions are properly considered as one for
expungement purposes”).
The first published appellate opinion analyzing in detail
the revised “prior or subsequent crime” language of N.J.S.A.
2C:52-2(a) was the Appellate Division’s decision in Ross, supra,
400 N.J. Super. at 120-24. There, the petitioner pled guilty to
one count of third-degree bribery in violation of the statute
then in effect, N.J.S.A. 2C:27-6, based on several bribes
offered to a housing inspector. Id. at 119. He also pled
guilty to one count of fourth-degree false swearing, N.J.S.A.
2C:28-2, arising from false testimony given several months after
the bribery incidents. Ibid. Although the petitioner’s
conviction for false swearing was ineligible for expungement
under N.J.S.A. 2C:52-2(b), he sought to expunge the bribery
conviction, invoking the “one-night spree” doctrine of Fontana.
Id. at 120, 123. Relying on the plain language of N.J.S.A.
2C:52-2(a), the Appellate Division rejected the petitioner’s
argument:
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. . . . [H]ad the
Legislature intended to permit the result
petitioner urges, it would have used the
19
language “and who has no prior or subsequent
convictions.”
[Id. at 122.]
The panel concluded that when the Legislature used the term
“subsequent crime” in N.J.S.A. 2C:52-2, “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,” thus rejecting the Appellate Division’s
holding in Fontana. Id. at 123-24; see also In re R.Z., 429
N.J. Super. 295, 301-02) (App. Div. 2013) (applying reasoning of
Ross and holding that petitioner bears burden to present prima
facie proof that crimes were committed concurrently, not on
“separate occasions”).
Two years after the Appellate Division’s decision in Ross,
the Legislature amended the expungement law to “broaden
opportunities for expungement.” Kollman, supra, 210 N.J. at
562. The 2010 amendments to the statute created an alternative
pathway for petitioners unable to comply with N.J.S.A. 2C:52-
2(a)’s presumptive ten-year waiting period: expungement under
the “public interest prong” of N.J.S.A. 2C:52-2(a), requiring
“the passage of five years; no additional convictions; and a
finding that expungement is in the public interest.” Id. at 571
(citing N.J.S.A. 2C:52-2(a)(2)). In addition, the Legislature
expanded the law to permit expungement of certain third and
20
fourth-degree CDS offenses, “where the court finds that
expungement is consistent with the public interest, giving due
consideration to the nature of the offense and the petitioner’s
character and conduct since conviction.” N.J.S.A. 2C:52-
2(c)(2); see also Kollman, supra, 210 N.J. at 571-72 (construing
requirements of alternative five-year pathway).
Notably, the Legislature’s 2010 effort to broaden the
expungement opportunities for offenders, particularly
individuals convicted of third- and fourth-degree CDS offenses,
see L. 2009, c. 188, did not include any alteration to the
“prior or subsequent crime” language of N.J.S.A. 2C:52-2(a) or
abrogate the Appellate Division’s construction of that language
in Ross. The provision relevant to this appeal, N.J.S.A. 2C:52-
2(a), remains in the form adopted by the Legislature in 1979.
Compare N.J.S.A. 2C:52-2(a) (current), with L. 1979, c. 178, §
109 (1979 enactment).
B.
In that context, the Court reviews the trial courts’
application of N.J.S.A. 2C:52-2(a) to the expungement petitions
of J.S. and G.P.B. Because both trial courts resolved an issue
of law in construing a statute, their determinations are
reviewed de novo. State v. J.D., 211 N.J. 344, 354 (2012)
(citing State v. Gandhi, 201 N.J. 161, 176 (2010)).
21
The Court’s interpretation of N.J.S.A. 2C:52-2 is guided by
familiar principles of statutory construction. The Court’s role
“is to effectuate the legislative intent of the expungement
statute.” In re D.H., 204 N.J. 7, 17 (2010) (internal quotation
marks and citations omitted); see also N.J. Dep’t of Children &
Families v. A.L., 213 N.J. 1, 20 (2013).
The Court first looks to the statutory language as “the
best indicator of [the Legislature’s] intent.” DiProspero v.
Penn, 183 N.J. 477, 492 (2005). If the plain language of the
statute is clear and “susceptible to only one interpretation,”
then the Court should apply that construction. Ibid. (citations
omitted); see also Norman J. Singer & J.D. Shambie Singer, 1A
Sutherland on Statutory Construction § 46:1, at 137-41 (7th ed.
2007) (“[W]here a statutory provision is clear and not
unreasonable or illogical in its operation, a court may not go
outside the statute to give it a different meaning.”). The
statute’s words should generally be read in accordance with
their ordinary meaning. DiProspero, supra, 183 N.J. at 492
(citing Lane v. Holderman, 23 N.J. 304, 313 (1957)). However,
those words should not be construed in a way that would produce
an absurd result. See State v. Lewis, 185 N.J. 363, 369 (2005)
(citing State v. Gill, 47 N.J. 441, 444 (1966)).
A statute should be considered in light of its surrounding
provisions. N.J. Dep’t of Envtl. Prot. v. Huber, 213 N.J. 338,
22
365 (2013) (stating that “we must examine . . . statutory
language sensibly, in the context of the overall scheme in which
the Legislature intended the provision to operate” (citing Merin
v. Maglaki, 126 N.J. 430, 436 (1992)). To resolve
inconsistencies among different sections of the expungement act,
the Court must “seek the interpretation that will make the most
consistent whole of the statute.” A.N.J., supra, 98 N.J. at 424
(citing Poswiatowski v. Standard Chlorine Chem. Co., 96 N.J.
321, 329-30 (1984)); see also In re Petition for Referendum on
City of Trenton Ordinance 09-02, 201 N.J. 349, 359 (2010)
(noting that Court must read statute’s sections “‘to provide a
harmonious whole’” (quoting Burnett v. Cnty. of Bergen, 198 N.J.
408, 421 (2009)).
The plain language of N.J.S.A. 2C:52-2(a) expresses the
Legislature’s intent to permit expungement of a single
conviction arising from multiple offenses only if those offenses
occurred as part of a single, uninterrupted criminal event.
Using the singular rather than the plural form, the statute
authorizes expungement of “a crime under the laws of this State”
-- not one or more crimes closely related in circumstances or in
time. N.J.S.A. 2C:52-2(a). With the expansive adjective “any,”
N.J.S.A. 2C:52-2(a) excludes petitioners who have been
“convicted of any prior or subsequent crime.” The statute’s
import is clear: no matter how many offenses are resolved by
23
one conviction, expungement is available only for a single
“crime” and is unavailable if another “crime” took place before
or after the offense to be expunged. See Ross, supra, 400 N.J.
Super. at 122 (noting that Legislature’s choice to modify
“crime,” rather than “conviction,” with adjectives “prior” and
“subsequent,” supports conclusion that expungement is
unavailable for crimes committed on separate occasions).
With a simple adjustment of its language, the Legislature
could have authorized expungement of the records of a crime,
even if the petitioner committed a prior or subsequent crime
that was related, or close in time, to the crime to be expunged.
Instead, in the broadest possible terms, the Legislature
excluded from expungement a crime that preceded, or was followed
by, any other crime.
That conclusion is underscored by the contrasting language
used by the Legislature when it described multiple offenses
committed on different occasions. For example, the statute
authorizes expungement for an indictable offense if the
petitioner “has not been convicted of any prior or subsequent
crime . . . and has not been adjudged a disorderly person or
petty disorderly person on more than two occasions.”5 N.J.S.A.
5 Contrary to the view of our dissenting colleagues, post at __
(slip op. at 8-9), the Legislature’s language in addressing
expungement of indictable offenses and its approach to
disorderly persons is not parallel, but directly contrasting.
24
2C:52-2(a). Another provision of the statutory scheme allows
expungement of a disorderly persons offense if the petitioner,
among other requirements, demonstrates that he or she has not
been convicted “of another three disorderly persons or petty
disorderly persons offenses[.]” N.J.S.A. 2C:52-3. Thus, when
the Legislature has decided to allow expungement notwithstanding
the presence of multiple offenses in the petitioner’s record, it
has had no difficulty expressing that intent.
Moreover, the Legislature’s 1979 amendment of the statutory
language is significant to our analysis. L. 1979, c. 178.
Under the language of the prior statute, the question was
whether the petitioner had a “subsequent conviction.” N.J.S.A.
2A:164-28 (repealed 1979). Although there is sparse guidance as
to the meaning of that language in the legislative history of
the predecessor expungement statute, the statement accompanying
the first amendment to the statute in 1936 indicates that the
Legislature’s purpose in enacting that version was to provide
relief to someone with “one single conviction.” Sponsor’s
Statement to Assemb. 293, supra. In that context, where the
statutory language and legislative history require only one
conviction, but are silent as to whether that conviction may
See N.J.S.A. 2C:52-2(a); 2A Sutherland on Statutory
Construction, supra, § 46:6, at 261-63 (“Different words used in
the same, or a similar, statute are assigned different meanings
whenever possible.”).
25
have adjudicated multiple offenses, the Appellate Division
adopted the “one-night spree” concept in Fontana, supra, 146
N.J. Super. at 267.
Thereafter, in its 1979 amendment to the statute, the
Legislature altered the relevant inquiry. Instead of precluding
expungement if a petitioner has a “subsequent conviction,”
N.J.S.A. 2A:164-28 (repealed 1979), the current statute bars
expungement if the petitioner has a conviction for “any prior or
subsequent crime.” N.J.S.A. 2C:52-2(a). Although the
Legislature did not identify Fontana as a factor in that
amendment, it is presumed to have been “‘thoroughly conversant
with its own [prior] legislation and the judicial construction
of its statutes.’” Nebesne v. Crocetti, 194 N.J. Super. 278,
281 (App. Div. 1984) (quoting Brewer v. Porch, 53 N.J. 167, 174
(1969)); see also Kollman, supra, 210 N.J. at 572 (citing “long-
standing canon of statutory construction” presuming
Legislature’s familiarity with “judicial interpretation of its
enactments”); State v. Chapland, 187 N.J. 275, 291 (2006)
(stating that “the Legislature is presumed to be aware of the
judicial construction placed on an enactment”). As the Court
noted in Nagy v. Ford Motor Co., 6 N.J. 341, 348 (1951), “a
change of language in a statute ordinarily implies a purposeful
alteration in substance of the law.” (internal quotation marks
omitted).
26
Thus, the Legislature that enacted N.J.S.A. 2C:52-2 is
presumed to have been aware of the judicial construction of the
expungement statute’s earlier version: the Appellate Division’s
holding in Fontana that a “spree” of offenses could be expunged.
See Ross, supra, 400 N.J. Super. at 123-24 (holding that, when
it enacted N.J.S.A. 2C:52-2, Legislature “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 [the]
decision in Fontana”). Notably, the Legislature has not further
amended the statute since the Appellate Division in Ross
rejected the “one-night spree” concept.
In their construction of the statute, our dissenting
colleagues “view as most relevant the legislative focus on the
verb ‘has been convicted’ rather than the majority’s focus on
the timing of the crime.” Post at __ (slip op. at 7). It is
not the majority, but the Legislature, that has focused the
inquiry on the “timing of the crime.” In the statute’s
disqualifying phrase “and who has not been convicted of any
prior or subsequent crime,” the adjectives “prior or subsequent”
modify the noun “crime,” not the noun “conviction.” N.J.S.A.
2C:52-2(a). The Legislature could have written the statute as
our dissenting colleagues describe it; indeed the prior statute,
N.J.S.A. 2A:164-28, used the term “subsequent conviction” to
convey a meaning close to that urged in the dissent. Our task,
27
however, is to construe the statue as it is written, and the
language of N.J.S.A. 2C:52-2(a) makes clear the Legislature’s
intent.
In short, notwithstanding its substantial expansion of
opportunities for expungement in other respects in its 1979 and
2010 amendments,6 the Legislature evidently sought a stricter
limit on the expungement of multiple offenses when it amended
N.J.S.A. 2C:52-2 to add the term “prior or subsequent crime.”
L. 1979, c. 178. The Legislature limited expungement to a
single “crime.” N.J.S.A. 2C:52-2(a). 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.7 The Legislature
clearly intended to bar expungement when the offender has
6 N.J.S.A. 2C:52-2 was amended on other occasions since 1979, but
only the 2010 amendment expanded the availability of
expungement. L. 2009, c. 188 (2010 amendment); see also L.
2013, c. 136 (adding offenses not available for expungement); L.
1994, c. 133 (Megan’s Law convictions not subject to
expungement); L. 1993, c. 301 (precluding from expungement
convictions by persons holding public office where crime
involved such office); L. 1989, c. 300 (requiring notification
of State Board of Medical Examiners upon receipt of petition for
expungement in certain circumstances).
7 Our dissenting colleagues misconstrue our holding to
“preclude[] a person from even applying for expungement if he or
she happens to plead to two counts -- as opposed to one count --
of an indictment as part of an agreement.” Post at __ (slip op.
at 6). This is not our holding; a single crime is subject to
expungement under N.J.S.A. 2C:52-2(a), even if it results in
multiple counts.
28
committed a second crime at an earlier or later time, whether or
not those crimes are resolved in the same judgment of
conviction. See ibid.; Ross, supra, 400 N.J. Super. at 123-24.
C.
The plain language of N.J.S.A. 2C:52-2(a) does not permit
the expungement of the convictions of either petitioner in these
appeals.
J.S. committed two offenses five days apart. His offenses
were similar; each consisted of a sale of a small quantity of
marijuana to an undercover officer and each led to a guilty plea
to a distribution charge. J.S.’s crimes, however, were not
committed as part of a single, uninterrupted criminal event.
Instead, each was a discrete “crime” within the meaning of
N.J.S.A. 2C:52-2(a), and the second offense was “subsequent” to
the first. J.S. is not eligible for expungement under the
statute’s plain language.
G.P.B. also committed his offenses within a short time
frame -- in his case, the span of two days. His four offenses
were committed in furtherance of the same conspiracy to
influence municipal officials by offering gifts in exchange for
votes on public questions before those officials. Each offense,
however, consisted of a separate criminal event. Each of the
communications that gave rise to the charges of offering gifts
to a public servant occurred at a different time and in a
29
separate telephone call to the public official whom G.P.B.
sought to influence. His crimes, although related, were “prior”
and “subsequent” to one another, and they are therefore not
subject to expungement under N.J.S.A. 2C:52-2.
D.
Our dissenting colleagues invoke policy arguments in
support of broader access to the remedy of expungement. Post at
__ (slip op. at 1-2, 12-13). Our role, however, is to construe
the expungement statute, not to “pass judgment on the wisdom of
a law or render an opinion on whether it represents sound social
policy.” Caviglia v. Royal Tours of Am., 178 N.J. 460, 476
(2004) (citing State Farm Mut. Auto. Ins. Co. v. State, 124 N.J.
32, 45 (1991)). As the Court has noted, “‘[i]t goes without
saying that the wisdom, good sense, policy and prudence (or
otherwise) of a statute are matters within the province of the
Legislature and not of the Court.’” State v. Gerald, 113 N.J.
40, 84-85 (1988) (quoting White v. Twp. of N. Bergen, 77 N.J.
538, 554-55 (1978), superseded by constitutional amendment as
stated in State v. Cruz, 163 N.J. 403, 411-12 (2000)). If the
Legislature determines that expungement should be available to
offenders such as petitioners, convicted of multiple crimes that
occurred in close succession but not concurrently, it has the
authority to amend N.J.S.A. 2C:52-2 to effect that intent.
IV.
30
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE RABNER, JUSTICES FERNANDEZ-VINA and SOLOMON,
and JUDGE CUFF (temporarily assigned) join in JUSTICE PATTERSON’s
opinion. JUSTICE LaVECCHIA filed a separate dissenting opinion,
in which JUSTICE ALBIN joins.
31
SUPREME COURT OF NEW JERSEY
A-84 September Term 2013
073376
A-2 September Term 2014
074541
IN THE MATTER OF THE
EXPUNGEMENT PETITION OF J.S.
IN THE MATTER OF THE
EXPUNGEMENT OF THE
CRIMINAL RECORDS OF G.P.B.
JUSTICE LaVECCHIA, dissenting.
It is reported that almost one out of every three Americans
has been arrested by age twenty-three. Amy L. Solomon, In
Search of a Job: Criminal Records as Barriers to Employment,
NIJ J., June 2012, at 42, 43 (citing Robert Brame et al.,
Cumulative Prevalence of Arrest from Ages 8 to 23 in a National
Sample, 129 Pediatrics 21, 21-27 (2012)). The future prospects
for such individuals are not encouraging. Two National
Institute of Justice-funded studies found that “a criminal
record reduces the likelihood of a job callback or offer by
approximately [fifty] percent.”1 Solomon, supra, at 43 (finding
1 “The National Institute of Justice [is] the research,
development and evaluation agency of the U.S. Department of
Justice[,] . . . dedicated to improving knowledge and
understanding of crime and justice issues through science.”
About NIJ, Nat’l Inst. of Just.,
http://nij.gov/about/Pages/welcome.aspx (last modified Feb. 25,
2013).
1
effect to be disproportionately felt among African Americans and
Latinos). A study by the American Bar Association found “more
than 38,000 statutes that impose collateral consequences on
people convicted of crimes,” and that eighty percent of those
statutes serve as functional “denial[s] of employment
opportunities.” Solomon, supra, at 44 (citing Am. Bar Ass’n,
Nat’l Inventory of the Collateral Consequences of Conviction,
http://www.abacollateralconsequences.org/ (last visited July 22,
2015)). Another study demonstrated that a majority of employers
“probably” or “definitely” would not hire applicants with
criminal records. Solomon, supra, at 46 (internal quotation
marks omitted) (citing Harry J. Holzer et al., Perceived
Criminality, Criminal Background Checks, and the Racial Hiring
Practices of Employers, 49 J.L. & Econ. 451, 453-54 (2006)); see
also Michelle Natividad Rodriguez & Maurice Emsellem, The Nat’l
Emp’t Law Project, 65 Million “Need Not Apply”: The Case for
Reforming Criminal Background Checks for Employment, 13-18
(2011), available at
www.nelp.org/content/uploads/2015/03/65_Million_Need_Not_Apply1.
pdf (finding frequent “no-hire” policies among major employers
on Craigslist for applicants with one or more arrest or criminal
conviction).
For many people with criminal convictions, the availability
of expungement is essential to their return to gainful lives.
2
Yet, the majority adopts a restrictive approach in its
interpretation of the section of the expungement statute that
addresses the threshold for being eligible even to apply for
expungement. In my view, that statutory language does not
plainly support the approach chosen by the majority. This is
remedial legislation. The ambiguity in the eligibility
provision of the expungement scheme permits a broader
construction than that taken by the Court today. In taking a
narrow view of who is eligible to apply for expungement
consideration, the majority reads the statute too restrictively.
I therefore respectfully dissent.
I.
The focus in this matter is on N.J.S.A. 2C:52-2(a) (Section
2(a)), which addresses only eligibility to apply for
expungement. In pertinent part, it provides:
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, whether within this State or any other
jurisdiction, and has not been adjudged a
disorderly person or petty disorderly person
on more than two occasions may, after the
expiration of a period of [ten] years from the
date of his conviction, payment of fine,
satisfactory completion of probation or
parole, or release from incarceration,
whichever is later, present a duly verified
petition as provided in [N.J.S.A.] 2C:52-7 to
the Superior Court in the county in which the
conviction was entered praying that such
3
conviction and all records and information
pertaining thereto be expunged.
[N.J.S.A. 2C:52-2(a).]
Section 2(a) was enacted in 1979 when the Legislature
consolidated and amended previously scattered statutes
addressing expungement to create a comprehensive scheme
governing expungement collected in Chapter 52 of New Jersey’s
new criminal code. See L. 1979, c. 178, §§ 107 to 139 (codified
as amended at N.J.S.A. 2C:52-1 to -32). In doing so, the
Legislature sought to create “an equitable system of
expungement” with “a practical administrative procedure” to
ensure the isolation of expunged records. S. Judiciary Comm.
Statement to S. No. 3203, at 11 (June 18, 1979); Assemb.
Judiciary, Law, Pub. Safety & Def. Comm. Statement to Assemb.
No. 3279, at 16 (June 28, 1979).
Prior to the 1979 amendment, the pre-title-2C expungement
statute, N.J.S.A. 2A:164-28, provided as follows in respect of
eligibility to apply for expungement:
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 for in this section.
4
[(Emphasis added).]
Nothing in the legislative history sheds light on the
Legislature’s reason for the changed wording in Section 2(a)’s
description of who is eligible to apply for expungement.
In my view, Section 2(a)’s meaning is ambiguous. The
statute’s prescription that the application process for
expungement is open to “a person [who] has been convicted of a
crime . . . and who has not been convicted of any prior or
subsequent crime” does not provide a clear answer to whether
someone with a judgment of conviction for multiple offenses is
eligible to apply for expungement. That quoted language does
not compel a construction that permits only a person with a
conviction for a single-count offense to apply. The legislative
choice of language becomes less clear in its meaning in this
respect when one considers that the statute’s self-proclaimed
purpose is to provide relief for the “one-time offender,”
N.J.S.A. 2C:52-32, and that a single criminal transaction can
give rise to multiple counts. See State v. Yarbough, 100 N.J.
627, 638, 645 (1985) (acknowledging that “multiple charges may
stem from one incident, as when one possesses and then sells a
narcotic drug,” or from pursuit of single objective (citation
and internal quotation marks omitted)); see also Black’s Law
Dictionary 1188 (9th ed. 2009) (defining “separate offense” as
5
including “[a]n offense arising out of a different event
entirely from another offense under consideration”). Indeed,
the meaning of someone “who has not been convicted of any prior
or subsequent crime” is not clear on its face, at least not as
clear as one might hope in order to justify narrowly reading a
remedial statute. See Maglies v. Estate of Guy, 193 N.J. 108,
123 (2007) (recognizing remedial legislation is “deserving of
liberal construction” (citation and internal quotation marks
omitted)); see also 3 Norman J. Singer & J.D. Shambie Singer,
Sutherland Statutory Construction § 60:1 at 250 (7th ed. 2008)
(“Remedial statutes are liberally construed to suppress the evil
and advance the remedy.”).
But to the majority, the language in Section 2(a) is clear
and allows for an interpretation that plainly precludes a person
from even applying for expungement if he or she happens to plead
to two counts –- as opposed to one count -- of an indictment as
part of an agreement. For example, under the majority’s
construction, an individual who pleads to selling a small amount
of drugs to two people on a certain day has no right to an
evaluation of the merits of the expungement application. In
contrast, an individual in a neighboring county who is allowed
to plead to one count of distribution under comparable
circumstances may apply for expungement. That inequity is not
clearly indicated from the plain language of the statute.
6
The majority construes the statute to limit applications for
expungement of an indictable offense to those individuals who
are convicted of a single count, or to a “single, uninterrupted
criminal event or incident.” Ante at ___ (slip op. at 23). To
be sure, the majority’s “single, uninterrupted criminal event or
incident” elaboration highlights the lack of clarity to its
approach that centers on the term “crime” when applying the
expungement statute. And, it demonstrates the majority’s need
to address the ambiguity in the phrase “has been convicted of a
crime,” a point that supports the view that there is uncertainty
about the legislative language. The majority’s interpretation
is not the only reasonable construction of the statute.
I view as most relevant the legislative focus on the verb
“has been convicted” rather than the majority’s focus on the
timing of the crime. Under the equally plausible construction
that focuses on the time of conviction as the most relevant
consideration, the number or order of the underlying facts of
the counts for which a person is indicted and for which
convicted are not controlling at the application stage. The
statute fairly may be read to permit the filing of an
application for expungement of an indictable offense or offenses
when a person has not been convicted of a crime prior or
subsequent to the judgment of conviction that he or she seeks to
expunge. The judgment of conviction may contain multiple
7
counts; however, on the day of conviction, the person has not
been previously or subsequently convicted of another offense.
He or she is a “one-time offender.” See N.J.S.A. 2C:52-32. I
would hold that such individuals are eligible to apply for
expungement and have their application vetted under the many
other provisions that instruct courts on how to evaluate the
merits of the application.
Before leaving the topic of the statute’s language and
whether it plainly precludes the interpretation I advance, it
bears noting that the language in Section 2(a) pertaining to
disorderly persons convictions supports the conclusion that the
focus should be on the date of entry of the judgment of
conviction itself, rather than on the number of counts contained
in the judgment of conviction. Section 2(a) also specifies
that, in order to qualify and apply for an expungement, a person
must be able to assert that he or she “has not been adjudged a
disorderly person or petty disorderly person on more than two
occasions.” N.J.S.A. 2C:52-2(a) (emphasis added). That clause
focuses on occasions of conviction (date the judgment was
entered), rather than the counts contained therein. Again, I
view the legislative focus to be on the verb “adjudged” and its
timing, not on how many incidents were involved in the
adjudication. The parallelism is notable because the
Legislature, when setting forth eligibility to apply for
8
expungement, was focused on when and how many times the person
was adjudged disorderly, not on how many underlying offenses
there were. Given the ambiguity in Section 2(a) in respect of
disqualifying criminal convictions, the clearly worded language
regarding disorderly persons adjudications should influence and
support our reading of the statute, not undercut it as the
majority views the two requirements.
Furthermore, a less restrictive reading of Section 2(a) than
that chosen by the majority is particularly appropriate given
that Section 2(a) governs the threshold determination of whether
people can even apply for expungement, not whether a petition
will be granted. Reading that threshold provision narrowly is
out of step with the expungement statute’s remedial nature and
ignores that there are many other bases for disqualifying
applicants.
As remedial legislation, the expungement statute should be
interpreted liberally. See Miah v. Ahmed, 179 N.J. 511, 525
(2004) (explaining that remedial goals of Anti-Eviction Act
merit liberal construction); Lindquist v. City of Jersey City
Fire Dep’t, 175 N.J. 244, 258 (2003) (noting policy of liberally
construing Workers’ Compensation Act in light of remedial
purpose). We have recognized the remedial aspects to
expungement on prior occasions. Expungement serves “to
eliminate ‘the collateral consequences imposed upon otherwise
9
law-abiding citizens who have had a minor brush with the
criminal justice system.’” In re Kollman, 210 N.J. 557, 568
(2012) (quoting In re T.P.D., 314 N.J. Super. 643, 648 (Law Div.
1997), aff’d o.b., 314 N.J. Super. 535 (App. Div. 1998)). In
Kollman, we noted that the “Legislature’s goals” in passing the
expungement statute were “to reward efforts at rehabilitation
and facilitate reentry when appropriate, and to provide relief
to certain one-time offenders who have rejected their criminal
past.” Id. at 580 (citing N.J.S.A. 2C:52-32).
By allowing for the less strict interpretation of who may
apply for expungement, the public interest is not disserved.
The statutory scheme provides other bases for denying
expungement for an indictable offense that safeguard the public
interest by making convictions for certain serious offenses
public knowledge and preventing serial offenders from abusing
the expungement process. Convictions for certain serious crimes
cannot be expunged. See N.J.S.A. 2C:52-2(b) (precluding
expungement of convictions for criminal homicide, defined in
N.J.S.A. 2C:11-2 (except death by auto, N.J.S.A. 2C:11-5);
kidnapping, N.J.S.A. 2C:13-1; human trafficking, N.J.S.A. 2C:13-
8; sexual assault or aggravated sexual assault, N.J.S.A. 2C:14-
2; robbery, N.J.S.A. 2C:15-1; arson and related offenses,
N.J.S.A. 2C:17-1; and numerous other offenses). N.J.S.A. 2C:52-
14 outlines grounds for which an application “shall be denied.”
10
Under N.J.S.A. 2C:52-14(a), expungement must be denied when
“[a]ny statutory prerequisite, including any provision of this
chapter, is not fulfilled or there is any other statutory basis
for denying relief.” Denial is also required under N.J.S.A.
2C:52-14(b), when “[t]he need for the availability of the
records outweighs the desirability of having a person freed from
any disabilities as otherwise provided in this chapter.” And,
N.J.S.A. 2C:52-14(e) precludes a court from granting a petition
where “[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.”
Finally, the construction advanced in this separate opinion
aligns with the fact that the legislative history of Section
2(a) provides no indication that the Legislature intended the
change in wording from the pre-amendment statute to alter the
statute’s meaning or to eliminate the approach taken in In re
Fontana, 146 N.J. Super. 264, 266-67 (App. Div. 1976), which
permitted an application to be considered, and even granted,
notwithstanding that a criminal spree of short duration resulted
in convictions for more than one offense.2 The legislative
2 The majority reads much into the legislative change that took
the word “conviction,” used as a noun in the pre-title-2C
statute, and used it as a verb in N.J.S.A. 2C:52-2(a). There is
nothing to support that that language change meant to sub
11
history of the statute does not indicate a specific intent to
eliminate the Fontana approach to a one-time spree of multiple
offenses charged and pled in a single conviction, when at the
time the judgment of conviction for the offenses was entered,
the individual had not previously been convicted and has not
since been convicted of another criminal offense.
Notably, shortly after the passage of the amended statute,
this Court did not view the new language as abrogating the
Fontana “one-night spree” doctrine. State v. A.N.J., 98 N.J.
421, 427 n.3 (1985). A.N.J. is the only time this Court has
commented, albeit in dicta, on Fontana’s spree doctrine, or on
the ability, generally, to expunge multiple convictions under
N.J.S.A. 2C:52-2(a). Ibid. In that case, the Court
acknowledged that “[b]y making its disqualifier for another
‘crime’ both retrospective and prospective [in the 1979
amendment], the Legislature has frozen the rights of the two-
time criminal.” Id. at 427. However, in a footnote to that
sentence, the Court, citing Fontana, stated: “We need not cast
doubt upon the view that a ‘one-night spree’ could still
constitute a one-time offense.” Id. at 427 n.3.
silentio abandon the Fontana approach. It may have signaled
simply what is posited in this opinion: that the statute
permits the filing of an application for expungement when the
person has not been convicted of a crime prior or subsequent to
the judgment of conviction that he or she seeks to expunge.
12
In sum, a fair reading of the statute would permit
applications for expungement for those who have no convictions
prior or subsequent to the judgment of conviction that they seek
to expunge. That reading’s foundation comes from the lack of
clarity in the statutory language; the fact that Section 2(a)
addresses the threshold for eligibility to seek the benefits
that may be available under a remedial statute; the existence of
many other safeguards within the statute to protect the public
interest; and the absence from the statute’s legislative history
of any intent to alter the previous application given to the
pre-amendment statute.
II.
In my view, we need not adopt the rigid approach taken by
the majority. It follows the path set down by the Appellate
Division in In re Ross, 400 N.J. Super. 117, 122-24 (App. Div.
2008), but it is not a path that is compelled. In light of the
serious consequences of not even allowing an individual to apply
for expungement, and considering that the public interest is
fully protected by the layers of review that can support denial
of an expungement application, I would not deprive the
individuals in either of these two appeals the opportunity to
file their applications and to have their expungement
applications addressed on their merits.
13
The majority strives to prove that theirs is the one true
interpretation of Section 2(a). The point is that Section 2(a)
is susceptible to more than one plausible construction, and,
given the expungement statute’s remedial purpose, a more
generous reading is appropriate. In view of that remedial
purpose, as well as the human consequences and disabilities
affecting so many people resulting from a criminal conviction, I
would read the statute liberally until the Legislature has
spoken with sufficient clarity to deprive so many of their
ability to re-enter society and enjoy productive lives.
I respectfully dissent.
14
SUPREME COURT OF NEW JERSEY
NO. A-84 SEPTEMBER TERM 2013
NO. A-2 SEPTEMBER TERM 2014
ON CERTIFICATION TO Appellate Division, Superior Court
IN THE MATTER OF THE
EXPUNGEMENT PETITION OF J.S.
IN THE MATTER OF THE
EXPUNGEMENT OF THE
CRIMINAL RECORDS OF G.P.B.
DECIDED August 10, 2015
Chief Justice Rabner PRESIDING
OPINION BY Justice Patterson
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY Justice LaVecchia
CHECKLIST AFFIRM DISSENT
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 5 2