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

NOT FOR PUBLICATION WITHOUT THE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