IN THE MATTER OF THE EXPUNGEMENT APPLICATION OF WILLIAM MUELLER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4758-07T44758-07T4

IN THE MATTER OF THE EXPUNGEMENT

APPLICATION OF WILLIAM MUELLER.

________________________

 

Argued March 3, 2009 - Decided

Before Judges Gilroy and Chambers.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. Ex-33-08.

Daniel B. Kelley argued the cause for appellant William Mueller.

Rebecca Berger, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Berger, of counsel and on the brief).

PER CURIAM

Appellant William Mueller appeals from that part of the June 6, 2008 order denying his petition for expungement of a criminal conviction of second-degree sexual assault, N.J.S.A. 2C:14-2c(1). We affirm.

The facts are not in dispute. On February 29, 1980, appellant was charged by a Burlington County Grand Jury with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(5) (Count One), and with third-degree terroristic threats, N.J.S.A. 2C:12-3a (Count Two). On July 2, 1980, pursuant to a plea agreement, appellant pled guilty to the amended charge of second-degree sexual assault on Count One in exchange for the State's recommendation to dismiss Count Two. On October 10, 1980, defendant was sentenced on the sexual assault conviction to a term of three years of probation conditioned on him serving six months in the Burlington County Jail. Pursuant to the plea agreement, the court dismissed Count Two.

On January 30, 2008, appellant filed a petition for expungement of the sexual assault conviction, having not only satisfactorily served his term of incarceration, but also completed his term of probation, pursuant to N.J.S.A. 2C:52-1 to -32 (the expungement chapter). The State objected to appellant's petition regarding the sexual assault conviction, contending that under N.J.S.A. 2C:52-2b "any conviction for a crime committed pursuant to N.J.S.A. 2C:14-2 is not eligible for expungement," citing In re Expungement of W.S., 367 N.J. Super. 307 (App. Div. 2004).

Following oral argument on appellant's petition on April 25, 2008, the trial court rendered an oral decision denying the application for expungement of the sexual assault conviction. In denying the application for expungement of the sexual assault conviction, the trial court relied on this court's decision in W.S., where we concluded that the parenthetical reference to "aggravated sexual assault" following the citation of N.J.S.A. 2C:14-2 in N.J.S.A. 2C:52-2b "is descriptive only, in that [the latter statute] prohibits expungement of any conviction under N.J.S.A. 2C:14-2." Id. at 309. A confirming order was entered on June 8, 2008.

On appeal, appellant argues:

POINT I.

PARENTHETICAL MATERIAL IN THE STATUTE IS NOT TO BE DISREGARDED. RATHER, IF TREATED AS "DESCRIPTIVE ONLY," THE STATUTE WOULD BE INTERNALLY FLAWED WHERE IT ELSEWHERE CLEARLY DEPENDS UPON PARENTHETICAL MATERIAL TO OPERATE/INTERP[R]ET.

A. IF THE PARENTHETICAL MATERIAL WAS ONLY A GENERAL DESCRIPTION OF THE OFFENSE UNDER N.J.S.A. 2C:14-2, SEXUAL ASSAULT, THE LEGISLATURE WOULD NOT HAVE SPECIFICALLY INSERTED THE WORD "AGGRAVATED" INTO THEIR DESCRIPTION OF OFFENSES BARRED FROM EXPUNGEMENT.

POINT II.

AGGRAVATED SEXUAL ASSAULT AND SEXUAL ASSAULT ARE DISSIMILAR OFFENSES WHICH CLEARLY WARRANT AND RECEIVE DIFFERENT TREATMENT UNDER NEW JERSEY LAW AS THEY SHOULD IN EXPUNGEMENT.

POINT III.

CONTRARY TO THE FINDING OF W.S., THE FOCUS OF N.J.S.A. 2C:52-2[b]'S BAR ON EXPUNGEMENT FOR CERTAIN MATTERS IS NOT A BLANKET PROHIBITION ON EXPUNGEMENT OF CONVICTIONS FOR SERIOUS VIOLENT CRIMES.

POINT IV.

TO DENY PETITIONER'S EXPUNGEMENT IS REPUGNANT TO THE EXPUNGEMENT STATUTE'S STATED PURPOSE AS DEFINED IN N.J.S.A. 2C:52-32 AND INTERPRETED IN CASE LAW.

The propriety of "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Accordingly, we review the decision of the trial court de novo. New Jersey Mfrs. Ins. Co. v. Horizon Blue Cross Blue Shield of N.J., 403 N.J. Super. 518, 523 (App. Div. 2008).

We have considered appellant's arguments in light of the record and applicable law and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Thomas S. Smith, Jr., in his oral decision of April 25, 2008. Nevertheless, we add the following comment.

On appeal, appellant argues that W.S. is a misstatement of the law and that we should part ways with that decision determining that the parenthetical reference to "aggravated sexual assault" following the citation to N.J.S.A. 2C:14-2 in N.J.S.A. 2C:52-2b is not merely descriptive, but rather limits the expungement exception for sexual assault convictions to those of aggravated sexual assault, N.J.S.A. 2C:14-2a. Appellant contends that the expungement exception does not apply to convictions of second-degree sexual assault, N.J.S.A. 2C:14-2b or -2c. Because we are satisfied that W.S. is a well-reasoned decision based on sound interpretation of the expungement chapter, we decline appellant's invitation. Moreover, it has been five years since W.S. was decided, and the Legislature has not amended N.J.S.A. 2C:52-2b, despite having ample time to do so. We conclude that because the Legislature is assumed to know the law and judicial construction of its statutes, the Legislature's acquiescence demonstrates that the judicial construction of a statute is consistent with its intended purpose. David v. Gov't Employees Ins. Co., 360 N.J. Super. 127, 143 (App. Div.), certif. denied, 178 N.J. 251 (2003).

 
Affirmed.

Appellant also requested expungement of: 1) the dismissal of the terroristic threats charge; 2) a conditional discharge for possession of marijuana in September 1979; and 3) a dismissal of a charge of possession of marijuana in October 1982.

The order also denied appellant's application for expungement of the dismissal of the terroristic threats charge and granted expungement of the conditional discharge for possession of marijuana and the dismissal of the charge of possession of marijuana. Appellant does not appeal from that part of the order denying his application for expungement of the dismissal of the terroristic threats charge.

(continued)

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A-4758-07T4

March 18, 2009