STATE OF NEW JERSEY v. R.Z.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0162-05T30162-05T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

R.Z.,

Defendant-Petitioner,

IN THE MATTER OF THE

APPLICATION OF R.Z. FOR

EXPUNGEMENT

___________________________

 

Argued April 4, 2006 - Decided July 26, 2006

Before Judges Collester and S.L. Reisner.

On appeal Superior Court of New Jersey,

Law Division, Somerset County, I-049-1-86.

Henry A. Loeb argued the cause for petitioner

(Blumberg & Rosenberg, attorneys; Mr. Loeb,

on the brief).

Jamin Cooper, Assistant Prosecutor, argued

the cause for respondent (Wayne J. Forrest,

Somerset County Prosecutor, attorney; Ms.

Cooper, on the brief).

PER CURIAM

Petitioner R.Z. appeals from the denial of his verified petition seeking expungement of his June 27, 1986, conviction of conspiracy to distribute a controlled dangerous substance contrary to the then governing statutes N.J.S.A. 24:21-19a(1), 2C:5-2 and 24:21-24 (count one); possession of a controlled dangerous substance, namely cocaine, with the intent to distribute, contrary to the then governing statute N.J.S.A. 24:21-19a(1) (count two); and possession of a controlled dangerous substance, cocaine, contrary to the then governing statute N.J.S.A. 24:21-20a(1) (count three). Petitioner entered a guilty plea to the indictment on March 27, 1986. At time of sentencing the judge merged the third count charging possession into the second count charging possession with the intent to distribute and sentenced the defendant to a five-year probationary term upon condition of successful completion of a residential inpatient drug treatment program. A disorderly persons complaint was also dismissed by the court.

The judge gave the following reasons for sentence:

The court is satisfied that the conduct of the defendant warrants a term of incarceration. However, the psychological report established to the Court's satisfaction that the defendant's conduct is alcohol and drug induced and would be more appropriately resolved by an inpatient drug and alcohol abuse treatment program for an extended period.

In his verified petition seeking expungement, petitioner stated that he has satisfied the inpatient drug treatment program requirement through a fifteen-month stay at Integrity House. He has no subsequent arrests or convictions and presently works as an electrician with his own business. He is married with two children. He coaches little league baseball and attaches letters from neighbors and other citizens attesting to his good character. He desires expungement of the twenty-one-year old offenses for his own personal and emotional needs as well as to assist him in obtaining employment in a public school system to obtain medical benefits for his family.

The prosecutor entered an objection to R.Z.'s petition setting forth the following reasons:

The petitioner pleaded guilty to charges of Possession of CDS with Intent to Distribute and Conspiracy to Distribute CDS. Under N.J.S.A. 2C:52-2(c), these charges are specifically noted as crimes that shall not be expunged.

Petitioner cites the case of State v. P.L., 369 N.J. Super. 291 (App. Div. 2004) in order to show that his convictions are able to be expunged. The case cited is distinguishable from petitioner's case in that petitioner was convicted of conspiracy to distribute CDS (cocaine) as well as possession with intent to distribute. The State commends [R.Z.] for his conduct and community involvement since his convictions. Unfortunately, eligibility requirements of the expungement chapter must be followed strictly even though they may not always seem completely sensible as stated in State v. A.N.J., 98 N.J. 421, 427 (1985).

The judge assigned denied expungement stating as his reason, "The crimes for which the Defendant has been charged may not be [expunged]."

The applicable statute, N.J.S.A. 2C:52-2, provides as follows:

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 . . . 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.

* * *

c. 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 relate to:

(1) Marijuana, where the total quantity sold, distributed or possessed with intent to sell was 25 grams or less, or

(2) Hashish, where the total quantity sold, distributed or possessed with intent to sell was five grams or less.

[N.J.S.A. 2C:52-2(a)(c).]

In State v. P.L., 369 N.J. Super. 291 (App. Div. 2004), we noted that the statute did not preclude expungement of a conviction for possession with intent to distribute but rather "distribution . . . with intent to sell." We held that since the language of N.J.S.A. 2C:52-2(c) was clear and unambiguous, it was unnecessary for us to look behind the literal wording of the statute to divine its meaning, and we declined to equate "intent to distribute" with the "intent to sell" preclusion in N.J.S.A. 2C:5-2(a)(c). See also State v. Thomas, 166 N.J. 560, 567 (2001).

The State argues that we should decline to follow P.L.. It argues that because there is no criminal statute proscribing possession of CDS with "intent to sell," only with "intent to distribute," that the Legislature must have intended that the expungement statute must be read to exclude a conviction for the statutory crime of possession with intent to distribute a controlled dangerous substance under N.J.S.A. 2C:35-5. However, the Supreme Court has held that the expungement statute must be narrowly construed even though its terms may not seem completely sensible, A.N.J., supra, 98 N.J. at 427; State v. N.W., 329 N.J. Super. 326 (App. Div. 2000). The general rule favors expungement of a first-time criminal conviction, with the exceptions to be narrowly construed. State v. P.A.F., 176 N.J. 218, 224 (2003). The applicant need show no particularized need for expungement when it is not specifically barred by statute, but the prosecution must show a particularized need for denial. See State v. J.N.G., 244 N.J. Super. 605 (1990).

We agree with the holding in P.L. as to the availability of expungement for the N.J.S.A. 2C:35-5 crime of possession with intent to distribute and also to the companion conviction of conspiracy. See In re D.A.C., 337 N.J. Super. 493 (App. Div. 2001) (holding that the expungement statute is equally applicable to both principals and accomplices).

The State's remedy for what it perceives is a problem is through the legislative process and not by asking to rewrite the statute. Accordingly, we reverse and remand for entry of an order of expungement.

Reversed.

 

(continued)

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6

A-0162-05T3

RECORD IMPOUNDED

July 26, 2006