IN THE MATTER OF THE EXPUNGEMENT OF KEITH J. MULLUSKY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0092-08T40092-08T4

IN THE MATTER OF THE EXPUNGEMENT

OF KEITH J. MULLUSKY

_________________________________

 

Submitted: June 9, 2009 - Decided:

Before Judges Axelrad and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. 58780.

Warren W. Faulk, Camden County Prosecutor, attorney for appellant State of New Jersey (Harry S. Collins, Assistant Prosecutor, of counsel and on the brief).

Respondent Keith Mullusky has not filed a brief.

PER CURIAM

The State appeals from the trial court's order granting petitioner's motion for expungement of his disorderly persons and petty disorderly persons convictions and denying reconsideration. We reverse.

As petitioner's criminal history revealed, he sustained a total of five disorderly/petty disorderly persons convictions stemming from offenses occurring on four separate dates, as follows:

Offense Offense Date Conviction Date

Harassment 8/22/88 11/14/88-Lindenwold

Harassment 9/20/88 11/14/88-Lindenwold

Harassment 10/13/88 10/25/88-Lindenwold

Attempting to Elude a Police Officer

8/6/94 6/18/97-Voorhees

Resisting Arrest

8/6/94 6/18/97-Voorhees

Petitioner also has multiple other arrests that did not result in convictions and a borough ordinance violation that he concedes is not subject to expungement. See N.J.S.A. 2C:52-4 (precluding expungement of a borough ordinance conviction by a person who has been adjudged a disorderly person or petty disorderly person on more than two occasions).

Petitioner filed a petition for expungement of the above convictions pursuant to N.J.S.A. 2C:52-3. Petitioner took the position that he should only be considered as having been convicted of three disorderly persons offenses, not five. He urged the court to consider the two convictions entered on June l8, 1997 in Voorhees for attempting to elude a police officer and resisting arrest as a single conviction for expungement purposes because although the offenses were not merged, both offenses occurred at the same time and involved the same officer, were listed on the same summons, and were disposed of on the same date. Likewise, petitioner urged the court to consider the two convictions for harassment entered on November l4, 1988 in Lindenwold as a single conviction for expungement purposes, emphasizing that they occurred within a month of each other and were disposed of on the same date even though the offenses emanated from separate incident dates and were not merged.

In support of his position in both instances, petitioner relied upon In re Patrick Fontana, 146 N.J. Super. 264, 266-67 (App. Div. l976), in which we held that numerous crimes committed by the defendant over a one-week period contained in six indictments but pled to on the same day constituted "a conviction" for purposes of the expungement statute then in effect. We permitted the expungement of the multiple offenses under the circumstances of the case because we viewed the criminal conduct at issue "as akin to a 'one night spree' which has generally received special consideration in sentencing[.]" Id. at 267 (internal citation omitted).

Petitioner additionally argued that even if the court did not consider the two separate Lindenwold harassment charges disposed of on the same date to be one offense and concluded petitioner had four disorderly persons convictions, he would still be entitled to expungement relief. According to petitioner, the phrase in the statute that "[a]ny person convicted of a disorderly persons offense or a petty disorderly persons offense under the laws of this State who has not been convicted of . . . another three disorderly persons or petty disorderly persons offenses" may apply for expungement, permits expungement if there are not more than four disorderly persons convictions.

In contrast, the State argued the plain language of the statute and the case law support the interpretation that expungement relief extends only to a person who has committed up to three disorderly persons or petty disorderly persons offenses for which he has been convicted. See State v. A.N.J., 98 N.J. 421, 427 (1985); State v. Ochoa, 314 N.J. Super. 168, 172 (App. Div. 1998). It further contended the facts were inapposite to Fontana, as there was no relationship between the August 1988 and September 1988 harassment charges in Lindenwold other than that petitioner pled guilty to both of them on the same date. Moreover, the State argued that we flatly rejected petitioner's "single conviction date" theory in In re Ross, 400 N.J. Super. 117 (App. Div. 2008), decided shortly before petitioner's expungement application. Thus, even accepting that the Voorhees offenses committed on the same day constituted a single conviction, the State's position was that petitioner still had four separate convictions, which rendered him statutorily ineligible for expungement relief.

Following oral argument, the court granted petitioner's motion for expungement by amended order of June 16, 2008, and thereafter denied reconsideration. It is difficult to discern the precise basis for the court's ruling although it appears the court found the statute permitted expungement of convictions for four disorderly persons offenses, which it categorized as "August 22nd '88, September 20th '88 . . . October l3 '88 . . . and . . . August 6, '94[.]" The State appealed.

We are satisfied the law does not allow for expungement of disorderly and petty disorderly offenses if an individual has more than three such convictions. In State v. A.N.J., supra, 98 N.J. at 422, our Supreme Court held that the provisions of the Code of Criminal Justice permit the expungement of more than one disorderly persons conviction, and allowed a defendant who had successfully petitioned to expunge two disorderly persons convictions to thereafter expunge a third disorderly persons conviction in another county. The Court contrasted the language of N.J.S.A. 2C:52-2, which limits expungement to the one-time "criminal" offender and N.J.S.A. 2C:52-3, which bars expungement of disorderly persons offenses only for those "convicted of any prior or subsequent crime **, or of another three disorderly persons or petty disorderly persons offenses[,]" and found implicit "that the Legislature would also freeze the rights of the disorderly persons offender at three convictions. Beyond that, no matter when the offenses occur, relief should not be granted." Id. at 427.

In State v. Ochoa, supra, 314 N.J. Super. at 170-71, we found that convictions for offenses in other jurisdictions that would be disorderly or petty disorderly persons offenses if committed in New Jersey must be considered in determining the applicability of the numerical bar to relief under N.J.S.A. 2C:52-3. In Ochoa, the petitioner had three disorderly/petty disorderly offenses that she committed in New Jersey in l990 and l99l and was convicted in other jurisdictions of four additional offenses that would be so classified in New Jersey. Id. at l70. Citing State v. A.N.J., we denied the petitioner expungement relief, stating:

Because a person who committed three or less disorderly persons and petty disorderly persons offenses may seek expungement of all of his or her convictions . . . petitioner concededly would have been eligible to seek expungement if her criminal record consisted solely of the three convictions in New Jersey. . . .

. . . .

. . . In the case of a person whose convictions consist solely of disorderly persons and petty disorderly persons offenses, the expungement law extends relief not only to the one-time offender but also to a person who has committed up to three such offenses. . . . However, the Legislature intended to "freeze the rights of the disorderly persons offender at three convictions. Beyond that, no matter when the offenses occur, relief should not be granted." . . . It would be manifestly inconsistent with this legislative intent to expunge the New Jersey convictions of a habitual petty offender who has committed numerous petty offenses in other jurisdictions but no more than three such offenses in New Jersey.

[Id. at 170-72 (internal citations omitted).]

We are also satisfied that the offense date, not the conviction date, controls whether a petitioner has exceeded the limits of the statutory, numerical prerequisites to expungement relief. See In re Ross, supra, 400 N.J. Super. at 122 (under N.J.S.A. 2C:52-2, if two crimes are committed on separate occasions, they are precluded from expungement regardless of whether the conviction date is the same, as the latter-committed crime is considered a "subsequent crime"). The reasoning of Ross is equally applicable to N.J.S.A. 2C:52-3, as is evident from the Legislature's use of the word "offenses" as opposed to "conviction" as the controlling conduct for expungement eligibility. Moreover, there is no logical or equitable basis to treat the present petitioner's unrelated harassment offenses of August 22, 1988 and September 20, 1988 as "akin to a one night spree" and view them as one offense for expungement purposes as we did in Fontana. Thus, petitioner's eligibility to seek and obtain an expungement under N.J.S.A. 2C:52-3 froze on the entry of his third harassment conviction on October 25, 1988. Once petitioner committed the "attempting to elude a police officer" offense on August 6, 1994, with its ensuing judgment of conviction entered on June l8, 1997, petitioner was precluded from seeking and obtaining expungement of any of his disorderly persons and petty disorderly persons offense convictions.

Reversed.

 

On May 16, 2008, prior to receipt of the State's timely brief in opposition, the court executed an order granting petitioner's motion for expungement. Nevertheless, the court allowed oral argument on June 2, 2008, and again granted the expungement, signing an amended order to that effect on June l6, 2008. The court denied reconsideration on August 4, 2008.

Harassment, N.J.S.A. 2C:33-4; Attempting to Elude a Police Officer, N.J.S.A. 2C:29-1b; and Resisting Arrest, N.J.S.A. 2C:29-2(a).

N.J.S.A. 2A:164-28 was the applicable expungement statute prior to the enactment of Title 2C of the penal code in l979 and enactment of the expungement statutes for indictable offenses, N.J.S.A. 2C:52-2, disorderly persons offenses and petty disorderly persons offenses, N.J.S.A. 2C:52-3, and ordinances, N.J.S.A. 2C:52-4.

N.J.S.A. 2C:52-3, Disorderly persons offenses and petty disorderly persons offenses, states:

Any person convicted of a disorderly persons offense or petty disorderly persons offense under the laws of this State who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, or of another three disorderly persons or petty disorderly persons offenses, may, after the expiration of a period of 5 years from the date of his conviction, payment of fine, satisfactory completion of probation or release from incarceration, whichever is later, present a duly verified petition as provided in section 2C:52-7 hereof 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.

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A-0092-08T4

July 14, 2009