IN THE MATTER OF THE EXPUNGEMENT OF THE ARREST/CHARGE RECORDS OF T.B. IN THE MATTER OF THE EXPUNGEMENT OF THE ARREST/CHARGE RECORDS OF J.N.-T.IN THE MATTER OF THE EXPUNGEMENT OF THE ARREST/CHARGERECORDS OF R.C.(CAPE MAY COUNTY AND STATEWIDE)(CONSOLIDATED)(RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1516-16T1
A-1517-16T1
A-1518-16T1
IN THE MATTER OF THE
EXPUNGEMENT OF THE ARREST/ APPROVED FOR PUBLICATION
CHARGE RECORDS OF T.B.
__________________________________ August 1, 2017
APPELLATE DIVISION
IN THE MATTER OF THE
EXPUNGEMENT OF THE ARREST/
CHARGE RECORDS OF J.N.-T.
__________________________________
IN THE MATTER OF THE
EXPUNGEMENT OF THE ARREST/
CHARGE RECORDS OF R.C.
__________________________________
Argued June 6, 2017 – Decided August 1, 2017
Before Judges Ostrer, Leone and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Cape May County.
Jacqueline M. Quick, Deputy Attorney
General, argued the cause for appellant
State of New Jersey (Christopher S. Porrino,
Attorney General, attorney; Sarah E. Miller,
Deputy Attorney General, of counsel and on
the briefs).
Stephen P. Hunter, Assistant Deputy Public
Defender, argued the cause for respondents
T.B., J.N.-T. and R.C. (Joseph E. Krakora,
Public Defender, attorney; Mr. Hunter, of
counsel and on the briefs).
The opinion of the court was delivered by
OSTRER, J.A.D.
In these consolidated appeals, we must decide whether Drug
Court graduates seeking expungement of their criminal records
pursuant to N.J.S.A. 2C:35-14(m) — the "Drug Court expungement
statute" — must make a "public interest" showing as N.J.S.A.
2C:52-2(c)(3) requires for the expungement of certain third- and
fourth-degree drug offenses. Having considered the plain
language of the Drug Court expungement statute, and its
legislative history, we conclude that N.J.S.A. 2C:35-14(m)(2)
clearly imports the public interest requirement under N.J.S.A.
2C:52-2(c)(3). We therefore vacate orders expunging the
criminal records of T.B., J.N.-T. and R.C., and remand for
appropriate application of the public interest test.
I.
As these appeals require us to consider the interplay
between N.J.S.A. 2C:35-14(m) and N.J.S.A. 2C:52-2(c)(3), we
review those key statutory provisions before considering the
parties' arguments. Effective April 18, 2016, L. 2015, c. 261,
§ 10, the Drug Court expungement statute generally provides for
the expungement of an offender's entire prior criminal record —
"all records and information relating to all prior arrests,
2 A-1516-16T1
detentions, convictions, and proceedings for any offense
enumerated in Title 2C" — after successfully completing, or
graduating from, Drug Court probation without any intervening
convictions. L. 2015, c. 261, § 1, codified as N.J.S.A. 2C:35-
14(m)(1). The law applies to persons sentenced pursuant to
N.J.S.A. 2C:35-14.2 and N.J.S.A. 2C:45-1. Ibid.
The statute initially speaks permissively, stating, "The
Superior Court may order the expungement . . . upon successful
discharge from a term of special probation" if the person
satisfies two conditions: first, "the person satisfactorily
completed a substance abuse treatment program as ordered," and
second, the person "was not convicted of any crime, or adjudged
a disorderly person or petty disorderly person, during the term
of special probation." Ibid. (emphasis added). Yet, the
statute then speaks mandatorily: "The court shall grant the
relief requested," unless the court finds one of two grounds for
denial. Ibid. (emphasis added). The first ground arises if
"the need for the availability of the records outweighs the
desirability of having the person freed from any disabilities
associated with their availability[.]"1 Ibid. The second ground
1
This is also a basis for denying regular expungement under
Chapter 52. See N.J.S.A. 2C:52-14(b).
3 A-1516-16T1
exists if "the person is otherwise ineligible for expungement
pursuant to paragraph (2)" of N.J.S.A. 2C:35-14(m). Ibid.
Paragraph 2 in turn provides, "[a] person shall not be
eligible for [a Drug Court] expungement . . . if the
[offender's] records include a conviction for any offense barred
from expungement pursuant to subsection b. or c. of N.J.S.[A.]
2C:52-2." N.J.S.A. 2C:35-14(m)(2). Subsection (b) identifies
several crimes that absolutely bar a person from regular
expungement under N.J.S.A. 2C:52-2 and, therefore, from any Drug
Court expungement under N.J.S.A. 2C:35-14(m). N.J.S.A. 2C:52-
2(b). These include, for example, kidnapping, murder,
manslaughter, and various sexual offenses. Ibid.
The focus of this appeal is subsection (c), which addresses
crimes involving the sale, distribution, or possession with
intent to sell a controlled dangerous substance (CDS). N.J.S.A.
2C:52-2(c). Some crimes are absolutely barred from expungement
if they are first- and second-degree offenses, while crimes
involving roughly fourth-degree quantities of marijuana or
hashish are not barred at all. Compare N.J.S.A. 2C:35-5(b)(12),
with N.J.S.A. 2C:52-2(c)(1) and (2). However, some crimes —
third- and other fourth-degree offenses — are barred unless the
court finds expungement serves the public interest. N.J.S.A.
2C:52-2(c)(3). Subsection (c) states:
4 A-1516-16T1
In the case of conviction for the sale or
distribution of a controlled dangerous
substance or possession thereof with intent
to sell, expungement shall be denied except
where the crimes involve:
(1) Marijuana, where the total quantity
sold, distributed or possessed with intent
to sell was 25 grams or less;
(2) Hashish, where the total quantity
sold, distributed or possessed with intent
to sell was five grams or less; or
(3) Any controlled dangerous substance
provided that the conviction is of the third
or fourth degree, 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]
2
We note that the excluded CDS offenses are not congruent with
the definitions of related CDS offenses in Chapter 35. For
example, N.J.S.A. 2C:35-5(b)(12) makes it a fourth-degree crime
to manufacture, distribute or dispense, or to possess with the
intent to do so, less than one ounce of marijuana — which equals
28.3 grams — or less than five grams of hashish. However,
N.J.S.A. 2C:52-2(c) imposes no bar to expungement for
convictions involving the sale, distribution, or possession with
intent to do so, marijuana of 25 grams or less, or hashish of
five grams or less. Also, N.J.S.A. 2C:35-5 makes it unlawful
"[t]o manufacture, distribute or dispense, or to possess or have
under his control with intent to manufacture, distribute or
dispense" CDS. Yet, the bar to expungement in N.J.S.A. 2C:52-
2(c) pertains only to convictions for "the sale or distribution
of a [CDS] or possession thereof with intent to sell," without
reference to convictions for manufacturing, dispensing, or
possession with intent to distribute by means other than sales.
Cf. N.J.S.A. 2C:35-2 (defining "dispense," "distribute," and
"manufacture" for purposes of Chapter 35). In State v. P.L.,
369 N.J. Super. 291, 294 (App. Div. 2004), the court held that
(continued)
5 A-1516-16T1
The Drug Court expungement statute also requires the
prosecutor "to notify the court of any disqualifying convictions
or any other factors related to public safety" that the court
should consider. N.J.S.A. 2C:35-14(m)(2). If a person who
secures a Drug Court expungement thereafter commits a crime,
"the full record of arrests and convictions may be restored to
public access and no future expungement shall be granted to such
person." N.J.S.A. 2C:35-14(m)(4).
A person who graduates from Drug Court after the effective
date need not file a formal petition for expungement as required
by N.J.S.A. 2C:52-7 to -14. See N.J.S.A. 2C:35-14(m)(1)
(stating that the "provisions of N.J.S.[A.] 2C:52-7 through
N.J.S.[A.] 2C:52-14 shall not apply"). It is sufficient simply
to convey the request to the Drug Court judge prior to
graduation; submission of a form of order suffices. See
Administrative Directive #02-16 (May 23, 2016), available
at https://www.judiciary.state.nj.us/notices/2016/n160526a.pdf.
(continued)
N.J.S.A. 2C:52-2(c) did not bar expungement of a conviction for
possession of marijuana with intent to distribute, as opposed to
intent to sell. In In re G.R., 395 N.J. Super. 428, 432-33
(App. Div.), certif. denied, 193 N.J. 275 (2007), we concluded
the court must consider whether the facts underlying a
petitioner's conviction evince an intent to sell rather than
merely to distribute without sale. The parties have not
addressed any possible incongruities between their convictions
and those described in N.J.S.A. 2C:52-2(c). Given our
disposition, they may wish to do so on remand.
6 A-1516-16T1
However, a person who graduated before the effective date of L.
2015, c. 261, and seeks the relief provided by the statute must
file "a duly verified petition as provided in N.J.S.[A.] 2C:52-7
for each crime or offense sought to be expunged." N.J.S.A.
2C:35-14(m)(5). This petition "shall proceed pursuant to
N.J.S.[A.] 2C:52-1 et seq. except that the requirements related
to the expiration of the time periods specified in N.J.S.[A.]
2C:52-2 through" N.J.S.A. 2C:52-4.1 are inapplicable. Ibid.
II.
The State contends that since convictions for third- and
fourth-degree drug offenses bar expungement under N.J.S.A.
2C:52-2(c)(3), absent a court finding that expungement serves
the public interest, it follows that such convictions bar a Drug
Court expungement without an identical public interest finding.
The applicants3 contend, since such convictions are not an
absolute bar to expungement under N.J.S.A. 2C:52-2(c), a public
interest finding is not required for a Drug Court expungement.
The trial court adopted the applicants' interpretation.
The court had before it requests for expungement from three Drug
Court graduates. All three entered Drug Court in 2011 after
3
For convenience, we refer to each Drug Court graduate as an
applicant, inasmuch as they were not required to file formal
petitions. See N.J.S.A. 2C:35-14(m)(1).
7 A-1516-16T1
pleading guilty to third-degree crimes.4 T.B. was convicted of
possessing CDS, N.J.S.A. 2C:35-10(a)(1). R.C. was convicted of
the same crime, as well as manufacturing, distributing or
dispensing CDS, or possessing it with intent to do so, N.J.S.A.
2C:35-5(a)(1), -5(b)(3), and conspiracy, N.J.S.A. 2C:5-2. J.N.-
T. was convicted of burglary, N.J.S.A. 2C:18-2. All three
successfully completed Drug Court probation in May 2016.
The applicants then sought orders under N.J.S.A. 2C:35-
14(m) expunging their entire criminal records, which included
numerous prior convictions. T.B. and R.C. each had a third-
degree conviction for manufacturing, distributing or dispensing
CDS, or possession with intent to do so, N.J.S.A. 2C:35-5. T.B.
had eleven convictions since 1990 — seven in municipal court and
four in Superior Court — including a violation of N.J.S.A.
2C:35-5(b)(3) in 1993. R.C. had three Superior Court
convictions dating back to 1996, including a 2010 conviction
under N.J.S.A. 2C:35-5(a)(1) and -5(b)(3). Thus, his most
recent conviction was his second such offense. J.N.-T. had a
third-degree conviction, from 1995, for distributing, dispensing
4
The applicants' judgments of conviction and presentence reports
are not before us. We rely upon the trial judge's description
of the applicants' records, which refer only to the Code
provision they violated. Thus, for example, it is unclear
whether an applicant convicted of violating N.J.S.A. 2C:35-5(a)
manufactured or distributed CDS, or whether he only possessed
CDS with the intent to do so.
8 A-1516-16T1
or possessing CDS with intent to distribute within 1000 feet of
a school, N.J.S.A. 2C:35-7.5 He was also convicted of seven
other indictable offenses, plus one disorderly persons offense
in municipal court, and one in family court.
Over the State's objection, the trial court granted the
three applications. In its written opinion, the court concluded
that since N.J.S.A. 2C:52-2(c) did not categorically bar
expungements of the specified third- and fourth-degree CDS
offenses, it did not present a barrier to Drug Court
expungements. The court found that the applicants satisfied the
requisites of N.J.S.A. 2C:35-14(m)(1), and that the State failed
to demonstrate by a preponderance of the evidence grounds to
deny the requested relief. Nonetheless, the court found that it
served the public interest to expunge the applicants' records:
The [applicants] have not been arrested
in the last five years while on special
probation. They have each completed
substance abuse treatment programs. They
are employed full-time and they have paid
all fines and costs. They are current in
their child support payments, and in the
case of [J.N.-T.], paid $7,000 in child
support arrearage. They are confirmed Drug
Court graduates. Thus, they have satisfied
their burden and meet all requirements to
5
We note that a conviction of N.J.S.A. 2C:35-7 involving
distribution, or attempt or conspiracy to distribute CDS to a
juvenile bars an offender from admission to special probation
under N.J.S.A. 2C:35-14. See N.J.S.A. 2C:35-14(b)(4).
9 A-1516-16T1
obtain the expungement of their criminal
records.
To the extent the State maintains that
[applicants'] drug offenses are
disqualifying convictions, the Court
concludes that precluding [applicants] with
drug offenses from "drug court expungement,"
absent other bases for rejection, is
antithetical to the Drug Court mandate.
. . . .
Given the nature of the [applicants']
criminal records, [applicants'] respective
commitments to sobriety and the Drug Court
program, the Court concludes that all
requirements for Drug Court expungement have
been met. As such, to advance the
[applicants'] goals of becoming productive
members of society, it is in the public
interest to provide them with the means to
rejoin the community without the burden of a
criminal record.
The court thereafter expunged the applicants' convictions, as
well as prior arrests not followed by convictions. The State's
appeals followed.
III.
We review de novo the trial court's interpretation of the
statute. State v. Revie, 220 N.J. 126, 132 (2014). Our goal is
to "determine and carry out the Legislature's intent" as
expressed in the statutory language, and if that is ambiguous,
then as illuminated by the legislative history and other
extrinsic evidence. In re Kollman, 210 N.J. 557, 568 (2012).
We read a statute in its entirety, giving meaning to each
10 A-1516-16T1
provision, "to provide a harmonious whole." Bedford v. Riello,
195 N.J. 210, 224 (2008). We also presume the Legislature is
aware of prior judicial interpretations of statutory language.
Kollman, supra, 210 N.J. at 572 (citing Coyle v. Bd. of Chosen
Freeholders, 170 N.J. 260, 267 (2002)). "If the plain language
is clear, the court's task is complete." Id. at 568.
We are persuaded that a court may grant a Drug Court
expungement of a record that includes a conviction for a third-
and fourth-degree CDS offense, as described in N.J.S.A. 2C:52-
2(c)(3), only if the applicant makes the public interest
showing. "The general rule is that when a statute incorporates
another by specifically referring to it by title or section
number, only the precise terms of the incorporated statute as it
then exists become part of the incorporating statute[.]" In re
Commitment of Edward S., 118 N.J. 118, 132 (1990); see 2B Norman
J. Singer, Sutherland Statutes and Statutory Construction § 51:8
at 315-16 (7th ed. 2008). By referring to "any offense barred
from expungement pursuant to subsection b. or c. of N.J.S.[A.]
2C:52-2," N.J.S.A. 2C:35-14(m)(2), the Drug Court expungement
statute expressly imports the offenses that bar expungement
under N.J.S.A. 2C:52-2(b) and -2(c).
Although Chapter 52 does not absolutely bar expungement of
the identified third- and fourth-degree CDS offenses, the bar
11 A-1516-16T1
exists, but for two exceptions. The first exception covers
offenses involving small quantities of marijuana and hashish.
See N.J.S.A. 2C:52-2(c)(1) and (2). Of principal concern in
this appeal, the second exception involves CDS convictions "of
the third or fourth degree, 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)(3).
Generally, exceptions are "strictly but reasonably
construed" with any doubts "resolved in favor of the general
provision." Prado v. State, 186 N.J. 413, 426 (2006) (internal
quotation marks and citations omitted); see also 2A Norman J.
Singer, Sutherland Statutes and Statutory Construction § 47.11
at 331 (7th ed. 2007) ("Where a general provision in a statute
has certain limited exceptions, all doubts should be resolved in
favor of the general provision rather than the exceptions."). 6
6
We are mindful of the related rule that exceptions to remedial
legislation should be strictly construed. See Nini v. Mercer
Cty. Cmty. Coll., 202 N.J. 98, 115 (2010). However, we do not
construe the reference in N.J.S.A. 2C:35-14(m)(1) to persons
"otherwise ineligible for expungement pursuant to paragraph (2)
of this subsection" to be an exception, notwithstanding that it
is introduced by the word "unless." That is because N.J.S.A.
2C:35-14(m)(2) is a free-standing provision that dictates "a
person shall not be eligible" for a Drug Court expungement if
(continued)
12 A-1516-16T1
Therefore, unless and until the exception is satisfied, the
"conviction [is] for an[] offense barred from expungement
pursuant to subsection b. or c. of N.J.S.[A.] 2C:52-2."
N.J.S.A. 2C:35-14(m)(2).
We add that the public interest showing, based on the
statute's plain language, pertains only to convictions described
in N.J.S.A. 2C:52-2(c)(3). If the person meets the public
interest test regarding an identified third- or fourth-degree
conviction, then his or her records do not include a conviction
"barred from expungement" under N.J.S.A. 2C:52-2(b) or -2(c).
The court is not required to find that it serves the "public
interest" to grant the expungement of other convictions, if the
Drug Court graduate is otherwise eligible. The Legislature has
made that judgment, although the court may still deny relief if
"it finds that the need for the availability of the records
outweighs the desirability of having the person freed from the
disabilities associated with their availability." N.J.S.A.
2C:35-14(m)(1).
The legislative history does not expressly address the
issue presented on appeal. However, the Legislature evinced no
intent to weaken the barriers to expungement set forth in
(continued)
the person's records include convictions barred by N.J.S.A.
2C:52-2(b) and -2(c).
13 A-1516-16T1
N.J.S.A. 2C:52-2(b) and -2(c). The Drug Court expungement
statute was originally embodied in a free-standing bill that
authorized "automatic expungement" of Drug Court graduates'
criminal records. See Assembly Bill No. 471, 216th Legislature
(Jan. 16, 2014); see also Senate Bill No. 552, 216th Legislature
(Jan. 14, 2014).7 The original bill was considerably narrower
than the one enacted. It applied only to first-time criminal
offenders, and only to the conviction leading to the Drug Court
sentence. It compelled expungement, provided that, "[t]he
conviction is for a crime not included in the list of crimes
that may not be expunged as provided in subsections b. or c. of
N.J.S.[A.] 2C:52-2[.]" Assembly Bill No. 471, supra, at § 1.
The sponsor's statement explained that expungement was not
available for "certain convictions for the sale or distribution
of a controlled dangerous substance or possession thereof with
intent to sell . . . ." Statement to Assembly Bill No. 471 at
14-15 (Jan. 16, 2014). It specifically stated, "the conviction
cannot be for any of the crimes that are ineligible for
expungement under subsections b. and c. of N.J.S.[A.] 2C:52-2."
Id. at 14.
7
The proposals were also introduced in the prior Legislature.
See Assembly Bill No. 2829, 215th Legislature (May 10, 2012),
and Senate Bill No. 2282, 215th Legislature (Oct. 25, 2012).
14 A-1516-16T1
The bill was amended and merged into a committee substitute
with other bills that proposed various amendments to Chapter 52,
mainly to reduce the waiting periods for expungements. See
Assembly Committee Substitute for Assembly Bill Nos. 206, 471,
1663, 2879, 3060 and 3108, 216th Legislature (Dec. 11, 2014)
(Assembly Committee Substitute).8 With respect to Drug Court
graduates, the committee substitute substantially expanded the
nature of relief offered by authorizing expungement of all prior
arrests and convictions. See id. at § 1.
Rather than limiting expungement to convictions of
"crime[s] not included in the list of crimes that may not be
expunged" in N.J.S.A. 2C:52-2(b) or -2(c), see Assembly Bill
471, supra, at § 1, the substitute referred to, as a
disqualification, "a conviction for any offense barred from
expungement" under N.J.S.A. 2C:52-2(b) or -2(c). Assembly
Committee Substitute, supra, at § 1. We do not infer from this
wording change any intent to narrow the disqualification, nor
does the committee's statement suggest one, as it simply tracks
the statutory language. See Assembly Judiciary Committee
8
The other constituent bills in the substitute were: Assembly
Bill No. 206, 216th Legislature (Jan. 16, 2014); Assembly Bill
No. 1663, 216th Legislature (Jan. 16, 2014); Assembly Bill No.
2879, 216th Legislature (Mar. 10, 2014); Assembly Bill No. 3060,
216th Legislature (Mar. 24, 2014); Assembly Bill No. 3108, 216th
Legislature (May 8, 2014).
15 A-1516-16T1
Statement to Assembly Committee Substitute at 1 (Dec. 11, 2014)
("The substitute provides that a person would not be eligible
for expungement under this provision of law if the records
include a conviction for any offense barred from expungement
pursuant to subsection b. or c. of N.J.S.[A.] 2C:52-2.").
The substitute also proposed to abolish the dual pathways
to expungement under Chapter 52 — in which a person was
presumptively entitled to expungement of an indictable offense
after ten years, and eligible for expungement after as few as
five years upon a public interest showing. See Kollman, supra,
210 N.J. at 569-72 (describing dual pathways). Instead, persons
would be presumptively entitled to expungement after five years,
without a public interest showing. Assembly Committee
Substitute, supra, at § 2; see also Assembly Judiciary Committee
Statement to Assembly Committee Substitute, supra, at 2. The
Governor ultimately conditionally vetoed the bill, proposing to
strike the waiting period reduction for indictable offenses and
restoring the dual pathways, which the Legislature then adopted.
See Governor's Conditional Veto Message to A. 206, 471, 1663,
2879, 3060 and 3108 (Jan. 11, 2016). The Governor endorsed the
public interest showing for expungements after five years under
Chapter 52, while approving the relief authorized for Drug Court
graduates. Ibid.
16 A-1516-16T1
In sum, based on the plain language of the statute, and
consistent with the legislative history, we conclude that a
trial court may grant a Drug Court expungement to a person who
has a third- or fourth-degree conviction for sale, distribution,
or possession with intent to sell CDS (other than the specified
marijuana and hashish-related crimes) only if "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)(3).
IV.
We also agree with the State's contention that the trial
court erred in determining that the State bore the burden of
proof to establish, by a preponderance of the evidence, that
expungement would be inconsistent with the public interest. The
trial court determined that granting the three expungement
petitions serves the public interest, notwithstanding its
conclusion that N.J.S.A. 2C:52-2(c) did not apply to Drug Court
expungements. The court concluded that the applicants met their
burden to qualify for expungement under N.J.S.A. 2C:35-14(m)(1),
and the State "failed to show by a preponderance of the evidence
that a ground exists to deny the petitions."
17 A-1516-16T1
We review the court's decision for an abuse of discretion.
See Kollman, supra, 210 N.J. at 577. In exercising that review,
"we first determine whether the court correctly applied the
law." In re LoBasso, 423 N.J. Super. 475, 496 (App. Div. 2012).
In particular, we examine whether the court applied
impermissible factors, or failed to apply required ones. See
Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)
(stating an abuse of discretion exists when, among other
circumstances, a decision is "based upon a consideration of
irrelevant or inappropriate factors" (internal quotation marks
and citation omitted)).
The court erred in finding that N.J.S.A. 2C:52-2(c) does
not apply. The court also imposed too great a burden on the
State. The State must initially show that the applicants were
convicted of a potentially disqualifying crime covered by
N.J.S.A. 2C:52-2(c)(3). See N.J.S.A. 2C:35-14(m)(2) (stating
"[i]t shall be the obligation of the prosecutor to notify the
court of any disqualifying convictions"); cf. Kollman, supra,
210 N.J. at 570 (stating that the prosecutor bears burden of
demonstrating a cause for denial after the petitioner
establishes objective elements of N.J.S.A. 2C:52-2(a)).9 Then,
9
Consequently, where a person was convicted of "possession with
intent" under N.J.S.A. 2C:35-5 or -7, the State would bear the
(continued)
18 A-1516-16T1
consistent with Kollman, supra, the Drug Court graduates bear
the burden to show they satisfy the public interest test. 210
N.J. at 572-73.
Although the court concluded it to be "in the public
interest to provide [the applicants] with the means to rejoin
the community without the burden of a criminal record," we
decline to defer to that conclusion, because the court applied
the wrong burden of proof, and the court did not make findings
consistent with N.J.S.A. 2C:52-2(c)(3). A trial court must
"giv[e] due consideration to the nature of the offense . . . ."
N.J.S.A. 2C:52-2(c)(3). "The 'nature of the offense'
encompasses undisputed or proven facts about the crime and its
commission." Kollman, supra, 210 N.J. at 574. Judges may, in
their discretion, 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.
To assist the court in exercising its discretion that
expungement is in the public interest, under N.J.S.A. 2C:52-
2(a)(2) and -2(c)(3), a Drug Court expungement applicant is
"direct[ed]" to include with their applications "all transcripts
(continued)
initial burden of demonstrating the possession was with the
intent to sell. See N.J.S.A. 2C:52-2(c); In re G.R., supra, 395
N.J. Super. at 431.
19 A-1516-16T1
of plea and sentencing hearings, as well as a copy of the
presentence report" for third- or fourth-degree offenses
described in N.J.S.A. 2C:52-2(c)(3). Kollman, supra, 210 N.J.
at 577. We are unpersuaded by applicants' argument that this
would be an insurmountable burden, or would defeat the goals of
the statute. Inasmuch as the Legislature imported the public
interest determination from Chapter 52, the Drug Court judge
must have the same resources as are available to the Chapter 52
expungement court, to assist it in its task.
In assessing the applicant's "conduct and character," the
court may also consider whether the applicant:
has engaged in activities that have limited
the risk of re-offending, or has avoided
activities that enhanced that 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.
[Id. at 576 (quoting LoBasso, supra, 423
N.J. Super. at 491-92).]
The trial court addressed, to some extent, each applicant's
"character and conduct" since conviction, noting their
successful completion of Drug Court. However, just as a court
may not reject a public interest finding based on "categorical
20 A-1516-16T1
or generic grounds," id. at 575, a court may not make a public
interest finding solely on the basis that the applicant
graduated from Drug Court. Implicit in the statute's
incorporation of N.J.S.A. 2C:52-2(c)(3) is the requirement that
the Drug Court graduate must demonstrate something more. We
note that the court acknowledged that the applicants completed
substance abuse treatment, obtained stable employment, and paid
fines and child support arrearages. However, the court did not
disclose other aspects of the applicants' character and conduct
while in Drug Court. See LoBasso, supra, 423 N.J. Super. at 492
(suggesting performance on probation may be relevant to a
character and conduct finding). Nor did the court address each
applicant's conduct since committing the offense that is subject
to the public interest test.
We recognize that, as a result of the intensive supervision
intrinsic to Drug Court, many Drug Court judges become familiar
with the participants and may form a well-grounded opinion about
their character and conduct. Nonetheless, the court is obliged
to specify the basis for its conclusion to enable appellate
review. See R. 1:7-4.
As the Court noted in Kollman, supra, "The focus . . . is
on the 'public interest,' which is broader than the personal
desires of an applicant, although the concepts can often be
21 A-1516-16T1
intertwined." 210 N.J. at 577. Yet, as with the legislation
that created the early pathway for expungement under Chapter 52,
a critical goal of the Drug Court expungement statute is to
"promote the successful reentry of ex-offenders into the
community." See ibid. In general, successful reentry of Drug
Court graduates serves the public interest by reducing drug-
related crime and its attendant costs, and maximizing offenders'
positive contribution to society.10
In sum, we remand the three Drug Court expungement
applications for reconsideration. Assuming the State can
demonstrate that the applicant has a potentially disqualifying
conviction under N.J.S.A. 2C:52-2(c)(3), the applicant shall
bear the burden to establish that expungement of that conviction
would serve the public interest, as required by N.J.S.A. 2C:52-
10
According to a recent analysis, 19.1 percent of all adult Drug
Court graduates are re-arrested within three years of
graduation; 7.1 percent are re-convicted; and 2.7 percent are
re-incarcerated, which is significantly below the comparable
figures for the general population of former offenders who were
previously incarcerated. See Administrative Office of the
Courts, New Jersey Adult Drug Court Program: New Jersey
Statistical Highlights (May 8, 2017), available at
https://www.judiciary.state.nj.us/courts/assets/criminal/njstats
.pdf. We understand the goal of the expungement relief is to
ease reentry, open up broader employment opportunities for
graduates, and further reduce recidivism rates. See Governor's
Conditional Veto Message to A. 206, 471, 1663, 2879, 3060, and
3108 (Jan. 11, 2016) (stating that Drug Court expungements
"might . . . help give non-violent offenders a fresh start, with
better employment prospects and educational opportunities").
22 A-1516-16T1
2(c)(3). The court shall make the appropriate finding
consistent with the principles set forth above and in Kollman.
We express no opinion on the appropriateness of the requested
expungements in these three cases, and leave it to the trial
court's sound exercise of discretion.
Vacated and remanded. We do not retain jurisdiction.
23 A-1516-16T1