IN THE MATTER OF THE APPLICATION FOR EXPUNGEMENT OF THE CRIMINAL RECORDS OF STEVEN BANKA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2008-08T42008-08T4

IN THE MATTER OF THE

APPLICATION FOR EXPUNGEMENT

OF THE CRIMINAL RECORDS OF

STEVEN BANKA,

Defendant-Appellant.

________________________________________________________________

 

Argued September 30, 2009 - Decided

Before Judges Carchman and Parrillo.

On appeal from the Superior Court of New

Jersey, Law Division, Monmouth County,

Indictment No. 88-06-01064-I.

Daniel B. Kelley argued the cause for

appellant (Kelley Law Offices, attorneys;

Mr. Kelley, of counsel and on the brief).

Carey J. Huff, Assistant Prosecutor, argued

the cause for respondent State of New Jersey

(Luis A. Valentin, Monmouth County Prosecutor,

attorney; Mr. Huff, of counsel and on the

brief).

PER CURIAM

Petitioner Steven Banka appeals from an order of the Law Division denying his petition for expungement of a 1988 judgment of conviction for possession with intent to distribute a controlled dangerous substance (marijuana), N.J.S.A. 2C:35-5b(11). In denying the application, Judge Neafsey found that defendant possessed the marijuana with intent to sell rather than dispense or distribute without sale. That finding precludes expungement. We affirm.

These are the relevant facts adduced from the record. On May 4, 1988, following a traffic stop by the Manalapan Township Police Department, which revealed the lack of proper registration for the vehicle petitioner was driving, petitioner was arrested and searched. While searching his person, the officers found that petitioner was carrying a small bag of marijuana, and while searching the car, the officers found a scale. After transport to the police station, petitioner was again searched, and a small bag of marijuana was found hidden in his underwear. Petitioner waived his Miranda rights and consented to a search of his bedroom at his residence. There, the police found an additional ten plastic bags of marijuana. Nine bags were located in petitioner's guitar case, while another bag was found in his bedroom closet. Subsequent lab reports confirmed that petitioner was in possession of a total of 121.95 grams of marijuana.

On June 7, 1988, petitioner was indicted by a Monmouth County Grand Jury, Indictment No. 88-06-01064, charging him with two counts of third-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5b(11), and fourth-degree possession of a CDS, N.J.S.A. 2C:35-10a(3). Ultimately, he pled guilty to the second count, third-degree possession of a CDS with intent to distribute. The remaining charges were dismissed. On September 22, 1988, petitioner was sentenced to three years probation, a six month driver's license revocation and fines.

In the twenty years following his conviction, petitioner led a crime-free life. He refrained from illegal drug use, remained steadily employed, completed his Associate's Degree, married and fathered a child to whom he provides financial support.

In his petition to expunge his conviction, petitioner claimed that he "never had any intent to sell the CDS in his possession nor has he ever engaged in the sale of CDS." He averred that "[a]ll of the marijuana I had was for the personal use of myself and a friend." He explained that he and his friend had "just gone in on a quantity of marijuana for our personal use and he lent me his scale to split it up between us once I picked it up." According to petitioner, the marijuana in the car and the scale were the property of his friend, while the marijuana at his home was for his personal use.

In an attempt to clarify why he possessed twelve separate packages of marijuana secreted in different locations, petitioner claimed that the packaging was "how it was packaged when I bought it or how I had split it up for my use." As to the scale, petitioner was seeking to be precise in his division of the marijuana, as both the petitioner and his friend were entitled to an exact share.

In opposing the expungement, the State focused on: 1) petitioner's admissions as to his sharing arrangement with his friend; 2) petitioner's possession of a scale; and 3) the existence of multiple packages of marijuana found in separate locations. After asserting that petitioner's arrangement with his friend constituted a sale, the State urged that the scale and the separately packaged marijuana hidden in different locations in the petitioner's bedroom were indicative of sales activity and not of mere personal use.

Following the hearing, Judge Neafsey, relying on our decision in In re G.R., 395 N.J. Super. 428, 433-34 (App. Div.), certif. denied, 193 N.J. 275 (2007), first observed that the burden is on the petitioner to first demonstrate his eligibility for expungement. Judge Neafsey concluded that petitioner did not meet that initial burden and was barred from seeking expungement since "the facts indicate the marijuana was possessed with the intention to sell." He found that the use of a scale for precise measurement, multiple separate packages of marijuana and different locations for the marijuana all indicated an intent to sell rather then an "intent to make a gratuitous distribution of marijuana to friends." He later added, in a supplemental opinion, that "[t]he bags of marijuana in the guitar case . . . could easily and discretely be transported to other locations simply by moving the guitar case," another factor which tended to show an intent to sell. He denied the petition. This appeal followed.

On appeal, petitioner argues that the judge failed to apply a "particular standard of proof" and his decision was based on "the Judge's own personal experience and interpretation of the evidence;" that the evidence presented was not sufficient to establish an intent to sell marijuana; and "to deny petitioner's expungement is repugnant to the expungement statute's purpose as defined in N.J.S.A. 2C:52-32 and interpreted in case law."

N.J.S.A 2C:52-2c bars convictions "for the sale or distribution of a [CDS] or possession thereof with intent to sell" from expungement except in limited circumstances, inapplicable here. Where there is a conviction for possession with intent to distribute, the focus of inquiry on an expungement application is whether petitioner had an intent to sell:

[if] the judge finds that [the] facts bespeak that the petitioner possessed CDS with the intent to sell, the petition must be denied because it is barred by the section. If the judge finds that the petitioner possessed the CDS with the intent of distribution without sale, the petition is not barred.

[In re G.R., supra, 395 N.J. Super. at 433-34; see also In re P.L., 369 N.J. Super. 291, 293 (App. Div. 2004) (stating that "the literal terms of N.J.S.A. 2C:52-2c bar expungement only if the conviction embraced the actual sale or distribution of CDS, or [possession with] the intent to sell CDS.").]

The distinction between an intent to sell, which bars expungement, and an intent to distribute, was addressed in In re P.L.. We observed that "[t]he words 'sell' and distribute are not synonymous; the word distribute is defined more broadly." In re P.L., supra, 369 N.J. Super. at 294. N.J.S.A. 2C:35-2 defines "distribute" as "to deliver" and "deliver" as "the actual, constructive, or attempted transfer from one person to another of a [CDS] . . . ." Intent to distribute is a broader concept then an intent to sell.

In re G.R. delineates the proof responsibilities of the parties on an application for expungement. In re G.R., supra, 395 N.J. Super. at 431. As we noted,

[a] petitioner has the burden to satisfy the requirements of the expungement statute. L.B., supra, 369 N.J. Super. at 363. Where the petitioner meets the burden, the State has the burden of demonstrating by a preponderance of the evidence that there is a statutory bar or that the petition should not be granted. Ibid.; State v. XYZ Corp., 119 N.J. 416 (1990). The petitioner is presumptively entitled to expungement if the State does not meet its burden. In re J.N.G., 244 N.J. Super. 605, 610 (App. Div. 1990).

[In re G.R., supra, 395 N.J. Super. at 431.]

We defined the requisite standard of proof requiring the State to establish that the existence of the bar is "more probable than not." Biunno, Current N.J. Rules of Evidence, comment 5a on N.J.R.E. 101(b)(1) (2009) (citing Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006) and others omitted). As we noted, should the State fail to meet its burden, the petitioner is presumptively entitled to expungement. In re G.R., supra, 395 N.J. Super. at 431 (citing In re J.N.G., 244 N.J. Super. 605, 610 (App. Div. 1990)).

We disagree with petitioner that Judge Neafsey failed to identify the applicable standard of proof. His consistent reliance on In re G.R. leaves little doubt that he understood the applicable burden. Judge Neafsey did not discuss the second-prong of the In re G.R. burden-shifting scheme as he correctly described In re G.R. as the governing case-law, identified the petitioner's threshold burden and concluded that the petitioner had not met its burden.

The true gravamen of petitioner's argument is that evidence presented by the State was insufficient to prove an intent to sell. In reviewing Judge Neafsey's decision, we give due deference to the judge's findings. Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 397 (2009). In attempting to satisfy his threshold burden of proof, petitioner offered an affidavit essentially denying that he intended to sell the marijuana and suggesting that the scale was used to divide that drugs among friends while the packaging was the original packaging of acquisition.

Petitioner argues that the affidavit served as prima facie evidence of eligibility, therein shifting the burden of proof to the State under In re G.R.. Petitioner claims that to hold otherwise would require a petitioner to prove a negative. The argument has surface allure but under the facts presented here, is unavailing. Even if, based on petitioner's affidavit, the burden shifted to the State, the facts here are more than sufficient to support a finding that petitioner intended to sell the drugs. The two critical considerations were, in fact, the scale and the packaging. Simply because petitioner denies that it was related to selling does not prevent the judge from concluding otherwise. That is what happened here. As Judge Neafsey's supplemental ruling states, the fact that there was a measuring scale found in petitioner's vehicle and nine plastic bags of individual servings of marijuana hidden in a transportable guitar case in petitioner's bedroom all make it more probable than not that petitioner had an intent to sell. While petitioner claims that the marijuana in his guitar case was separately packaged because it "was only related to how it was packaged when I bought it or how I had split it up for my use," the State's evidence is enough to satisfy the preponderance of the evidence standard set forth in In re G.R. supra, 395 N.J. Super. at 431.

Finally, Judge Neafsey ruled that "[t]he petitioner's argument regarding the purpose of the expungement statute does not negate the fact that the petition is barred by the statute." We agree that the broad statutory purpose outlined in N.J.S.A 2C:52-32 can not be used to overcome the statutory bar to expungement at N.J.S.A 2C:52-2c. N.J.S.A 2C:52-32 states that the expungement statute:

shall be construed with the primary objective of providing relief to the one-time offender who has led a life of rectitude and disassociated himself with unlawful activity, but not to create a system whereby periodic violators of the law or those who associate themselves with criminal activity have a regular means of expunging their police and criminal records.

Under the predecessor expungement statute, N.J.S.A. 2A:164-28, the granting of an expungement was within the trial judge's discretion. Application of Fontana, 146 N.J. Super. 264, 267 (App. Div. 1976). Petitioner relies on Fontana for the proposition that the expungement statute's purpose "'will be advanced by a construction which authorizes expungement,'" (quoting Application of Fontana, supra, 146 N.J. Super. at 267). N.J.S.A. 2A:164-28, the statute considered in Fontana, was repealed in 1979. In re Ross, 400 N.J. Super. 117, 122 (App. Div. 2008). We have held that in repealing N.J.S.A. 2A:164-28, the Legislature sought to narrow the lower court's discretion. Id. at 123-24 (observing that "when the Legislature enacted N.J.S.A. 2C:52-2, it 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 our decision in Fontana.").

While we acknowledge and appreciate that petitioner has led a crime-free life for twenty-years that fact, standing alone, can not overcome the underlying statutory bar. Petitioner argues that the "[t]he general focus of the expungement exclusions could arguably be said to be very serious offenses, drug dealers and other bad actors." He asserts, from a statutory purpose perspective, that the Legislature was focused on denying expungement to drug dealers, violent criminals, those convicted of harming children, and other serious offenders, not "[a] 20 year old working kid with pot in his guitar case."

While petitioner's arguments are appealing, they are not correct. The New Jersey Supreme Court commented in State v. A.N.J., 98 N.J. 421, 427 (1985), that as to expungements, "[a]nomalies may arise . . . [y]et courts must follow the act." A court's analysis under the statute cannot make subjective judgments as to the deservedness of expungement in one case as opposed to the other. The legislative scheme for expungement is clearly delineated, and any suggestion of weighing one defendant as against another is for legislative mandate.

We are constrained to follow the plain language of N.J.S.A. 2C:52-2c. As we found in In re P.L., "the language in N.J.S.A. 2C:52-2c is clear and unambiguous. Accordingly, it is unnecessary for us to look beyond the statute's literal terms in order to ascertain its meaning. In re P.L., supra, 369 N.J. Super. at 293 (citing State v. Thomas, 166 N.J. 560, 567 (2001)). When a clear and explicit statutory bar to expungement exists, such as N.J.S.A 2C:52-2c, broad statements of purpose, as in N.J.S.A 2C:52-32, cannot be used to override the statute's plain terms.

We agree with the judge that Application of V.S., 258 N.J. Super. 348, 352 (Law Div. 1992), is inapposite. V.S. does not involve possession of a CDS, instead dealing with child abuse, an offense not barred by the statute. Application of V.S., supra, 258 N.J. Super. at 354 (noting that "[i]f the Legislature had intended this type of conviction to be unavailable for expungement it would have clearly said so in N.J.S.A. 2C:52-2 . . . .").

 
We conclude that the judge correctly determined that petitioner was not entitled to expungement.

Affirmed.

Miranda v. Ariz., 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

N.J.S.A. 2C:52-2c provides:

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 crime relates to:

(1) Marijuana. Where to 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.

(continued)

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A-2008-08T4

October 19, 2009