IN THE MATTER OF APPLICATION FOR EXPUNGEMENT OF THE CRIMINAL RECORD OF P.M.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3193-11T3

IN THE MATTER OF APPLICATION

FOR EXPUNGEMENT OF THE CRIMINAL

RECORD OF P.M.

__________________________________

December 14, 2012

Submitted December 5, 2012 - Decided

Before Judges Axelrad and Haas.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. M-464-11.

Mark P. Stalford, attorney for appellant P.M.

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent State of New Jersey (Joie Piderit, Assistant Prosecutor, and Matthew P.Tallia, of counsel and on the brief).

PER CURIAM

Petitioner P.M. appeals the denial of his petition for expungement filed in the Law Division pursuant to N.J.S.A. 2C:52-1 to -32. We affirm.

Petitioner was charged in fifty counts of a sixty-four count Middlesex County indictment with nine counts of third-degree burglary, seven counts of fourth-degree unlawful theft or receipt of a credit card, twenty-nine counts of third-degree fraudulent use of a credit card, three counts of third-degree attempted fraudulent use of a credit card, one count of third-degree theft by deception, and one count of third-degree conspiracy, for conduct occurring at the Rutgers University, New Brunswick campus and nearby department stores between December 11, 1998 and April 9, 1999. On December 6, 1999, petitioner entered a guilty plea to three counts of third-degree burglary, N.J.S.A. 2C:18-2; three counts of third-degree fraudulent use of a credit card, N.J.S.A. 2C:21-6h; and one count of third-degree theft by deception, N.J.S.A. 2C:20-4.

According to the presentence report, defendant and one of his three co-defendants entered a locker at the Werblin Gym at Rutgers on March 9, 1999 and took two of the victim's credit cards. On that same date, they used one of the credit cards at the Nobody Beats the Wiz store in Edison to purchase $1,089.64 in merchandise, and used the other at the Manhattan Carving Company store in Edison to buy $10.55 in merchandise. The next day, defendant and the same co-defendant used one of the victim's credit cards at the Caldor store in South Plainfield to purchase $5.94 in merchandise. In addition, between December 11, 1998 and March 10, 1999, defendant and the co-defendant took property, worth more than $18,000, "from numerous stores in Middlesex, Somerset, and Bergen Counties by using deceptive purposes with the intention to deprive the victims of their property/merchandise."

On April 9, 1999, the Rutgers University Police set up a physical surveillance at the Werblin gym. On that date, the police saw defendant and the same co-defendant enter another victim's locker. Petitioner and the co-defendant then left the gym and entered the victim's vehicle. At that point, they were arrested.

On March 20, 2000, petitioner was sentenced to five years probation, conditioned upon 180 days in the county jail. He was required to pay mandatory fines and penalties, together with $4,549.42 in restitution to nine separate victims. Petitioner completed his probation on, and paid all outstanding financial obligations by, February 3, 2003.

In July 2011, petitioner filed a petition for expungement of his convictions. On January 26, 2012, Judge Frank M. Ciuffani denied the petition in a written decision and order. The judge found that, because petitioner had committed multiple crimes, he was not eligible to have his petition considered under N.J.S.A. 2C:52-2a.

Petitioner appeals. He argues the judge erred by not treating him as a "one-time offender" for purposes of expungement. He asserts "that there was only one criminal case stemming from a single arrest and a single indictment for crimes directly related to each other." We disagree and, accordingly, affirm.

Expungement is a purely statutory remedy. It is intended to provide relief to "the one-time offender," not to "periodic violators of the law." N.J.S.A. 2C:52-32. For that reason, repetitive offenders are barred from relief under most circumstances.

On appeal, petitioner relies upon our decision in In re Application of Patrick Fontana, 146 N.J. Super. 264 (App. Div. 1976). In Fontana, 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.1 Ibid. We permitted the expungement of multiple offenses under the circumstances of that 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 (citation omitted).

However, our decision in Fontana was based upon the specific language of the expungement statute then in effect, N.J.S.A. 2A:164-28, which provided, in pertinent part:

In all cases wherein a criminal conviction has been entered against any person whereon sentence was suspended, or a fine imposed of not more than $1,000 and no subsequent conviction has been entered against such person, it shall be lawful after the lapse of ten years from the date of such conviction for the person so convicted to present a duly verified petition to the Court, wherein such conviction was entered, setting forth all the facts in the matter and praying for the relief provided in this section.

[(Emphasis added).]

However, as we noted in our later decision in In re Ross, 400 N.J. Super. 117, 120-22 (App. Div. 2008), the expungement statute was amended in 1979, subsequent to Fontana to provide, in pertinent part:

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 . . . [the person] may, after the expiration of a period of 10 years2 from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later, . . . [apply for expungement of] such conviction and all records and information pertaining thereto

. . . .

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

In Ross, we reasoned 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 was exemplified by our decision in Fontana," and concluded that "when the Legislature chose the language 'subsequent crime' it intended to preclude expungement of a conviction where an individual commits a second crime even if the two crimes result in a single sentencing and conviction date." Supra, 400 N.J. Super. at 123-24. We discern no basis to now hold otherwise. Accordingly, we are satisfied Judge Ciuffani correctly applied N.J.S.A. 2C:52-2a and determined petitioner was not entitled to expungement because he pled guilty to seven indictable offenses even though the crimes resulted in a single sentencing and conviction date.

In addition, the record in this case simply does not support the application of a "single spree" doctrine to petitioner's conduct, even if this doctrine were still viable. He pled guilty to seven indictable crimes involving different victims and occurring over a span of almost four months. The crimes were diverse, involving burglaries from gym lockers and a car, the fraudulent use of credit cards, and theft by deception.

1 N.J.S.A. 2A:164-28 was the applicable expungement statute prior to the enactment of Title 2C of the penal code in 1979 and enactment of the expungement statutes for indictable offenses, N.J.S.A. 2C:52-2, disorderly persons offenses, N.J.S.A. 2C:52-3, and ordinances, N.J.S.A. 2C:52-4.

2 In 2010, the Legislature amended this statute to permit an "early pathway" to expungement in certain cases after five, rather than ten, years if expungement is in the public interest. N.J.S.A. 2C:52-2a(2). An applicant seeking expungement under this "early pathway" provision must, however, meet the other requirements of N.J.S.A. 2C:52-2a. In re Kollman, 210 N.J. 557, 570-71 (2012). Petitioner applied for expungement under this provision because ten years had not yet passed since the February 3, 2003 completion of his sentence.