STATE OF NEW JERSEY v. D.L.C.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2013-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

D.L.C.,

Defendant-Appellant.

__________________________________

January 29, 2013

Argued September 11, 2012 - Decided

Before Judges Messano and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 95-05-0088.

Allan Marain argued the cause for appellant (Allan Marain & Associate, attorneys; Mr. Marain, on the briefs).

Jeffrey L. Weinstein, Assistant Prosecutor, argued the cause for respondent (Anthony P. Kearns, III, Hunterdon County Prosecutor, attorney; Mr. Weinstein, on the brief).

PER CURIAM

Defendant appeals from the trial court's order denying his petition to expunge records of his January 1994 conviction for third degree burglary, N.J.S.A. 2C:18-2a(1), and third degree theft, N.J.S.A. 2C:20-3a. Interpreting N.J.S.A. 2C:52-4.1(a), the court held expungement was not permitted because defendant was previously adjudicated delinquent for acts that would have been classified as crimes if committed by an adult. As the court's statutory interpretation mirrors one we rejected in In re Expungement Petition of J.B., 426 N.J. Super. 496 (App. Div. 2012), we reverse.

I.

Born in June 1971, defendant was first adjudicated delinquent when he was thirteen years old. He had numerous contacts with the juvenile justice system thereafter. Defendant was unable to obtain the records of disposition of some of his arrests. The record before us includes five complaints when defendant was thirteen, charging acts that would constitute the following offenses if committed by an adult: (1) interference with transportation (for throwing a rock into an automobile windshield) on October 30, 1984, N.J.S.A. 2C:33-14; (2) receiving stolen property (a moped) on November 23, 1984, N.J.S.A. 2C:20-7; (3) burglary of a residence and theft of movable property ($50) on December 10, 1984, N.J.S.A. 2C:18-2 and N.J.S.A. 2C:20-2; (4) burglary of an automobile, and receiving stolen property on January 8, 1985, N.J.S.A. 2C:18-2 and N.J.S.A. 2C:20-7; and (5) possession of less than twenty-five grams of marijuana on May 17, 1985, N.J.S.A. 24:21-20 (repealed 1987).

Defendant was adjudicated delinquent on the first two complaints and placed on two years' probation on March 22, 1985. Defendant was unable to discover the disposition of the third complaint. Defendant was charged in an August 1985 complaint with unlawfully taking a means of conveyance, N.J.S.A. 2C:20-10(a), driving without a license, N.J.S.A. 39:3-10, and careless driving, N.J.S.A. 39:4-97, on July 21, 1985.

On November 7, 1985, an order was entered adjudicating him delinquent for the acts committed in January, May and July (as alleged in the fourth, fifth and sixth complaints) and committing him to the New Jersey Home for Boys, Jamesburg, for six months.1 However, the court on December 2, 1985 entered an order dismissing the count of the August complaint charging unlawfully taking a means of conveyance. Another order of disposition of the same date indicated that after a hearing was held, the August complaint was dismissed, "[g]uilt of the charge not having been proved[.]"

Defendant provided a copy of a complaint alleging underage possession of alcoholic beverage in July 1987, but he was unable to discover the disposition. Four other complaints were filed against defendant in April, July and November 1987, charging acts that would constitute assault; criminal trespassing; driving without a license, helmet or insurance; and driving an unregistered and uninsured vehicle. After a final hearing in February 1988, defendant was sentenced to an indeterminate term of no more than a year in Jamesburg, suspended.2

As an adult, defendant was arrested in September 1991 and charged with terroristic threats, N.J.S.A. 2C:12-3b; the matter was downgraded to harassment, N.J.S.A. 2C:33-4, and referred to municipal court. Although the New Jersey Criminal History indicated the disposition was "unavailable," defendant stated the charge was dismissed.

In February 1993, defendant was charged with receiving stolen property, N.J.S.A. 2C:20-7a. He was found guilty in municipal court and fined $250. Defendant was then arrested in May 1993, and ultimately indicted along with three co-defendants who, based on a common surname, appeared to be family members.3 Defendant was charged with burglary, N.J.S.A. 2C:18-2a(1), and receiving stolen property, N.J.S.A. 2C:20-7. Some co-defendants were charged with the same offenses; others were charged as well with another burglary and weapons offenses. Defendant entered a guilty plea in November 1993 to third degree burglary, N.J.S.A. 2C:18-2(a)(a), and theft of movable property, N.J.S.A. 2C:30-3(a), and was sentenced in January 1994 to concurrent terms of two years probation, conditioned on thirty days in the county jail to be served on weekends, and 200 hours of community service.

In July 2011, defendant filed a verified petition for expungement of records pertaining to his 1993 adult conviction for burglary and receiving stolen property. He also sought expungement of the records pertaining to the dismissed August 1985 juvenile complaint and the dismissed adult harassment complaint from 1991. Defendant did not seek expungement related to any of the adjudications of delinquency, nor the 1993 municipal court conviction for receiving stolen property.

He explained that even with the diligent efforts of his attorney's paralegal, which were described in an accompanying certification, defendant was unable to discover the disposition of the complaints alleging the December 1984 burglary and receiving stolen property, and the July 1987 underage alcoholic beverage possession. He also asked the court to refer to him by initials in the caption and order.

The State argued expungement of the adult conviction was barred. The State did not oppose expungement related to the dismissed juvenile complaint or dismissed adult harassment charge. Defendant sought expungement under N.J.S.A. 2C:52-2, which authorizes a person to seek expungement of records and information pertaining to a conviction for a crime "10 years from the date of his conviction, payment of fine, satisfactory completion of probation or parole," if the person "has not been convicted of any prior or subsequent crime, . . . and has not been adjudged a disorderly person . . . on more than two occasions[.]" The State argued that defendant's multiple juvenile adjudications constituted convictions of a "prior . . . crime." The State relied on the unnumbered paragraph in N.J.S.A. 2C:52-4.1(a), which states, "[f]or the purposes of expungement, any act which resulted in a juvenile being adjudged a delinquent shall be classified as if that act had been committed by an adult." The State asserted the provision should be generally applied, though it recognized the issue of statutory interpretation was unsettled, and trial courts had adopted divergent interpretations of the provision.

The State also maintained that the petition was technically incomplete, because it omitted the disposition of two juvenile complaints, notwithstanding that defendant sought no relief with respect to them. The State apparently relied on N.J.S.A. 2C:52-7, which sets forth the required contents of a petition for expungement.

Everypetition for expungement filed pursuant to this chapter shall be verified and include:

a. Petitioner's date of birth.

b. Petitioner's date of arrest.

c. The statute or statutes and offense or offenses for which petitioner was arrested and of which petitioner was convicted.

d. The original indictment, summons or complaint number.

e. Petitioner's date of conviction, or date of disposition of the matter if no conviction resulted.

f. The court's disposition of the matter and the punishment imposed, if any.

[Ibid.]

The court denied expungement of the adult conviction, but ordered expungement of the two dismissed matters, and agreed to refer to defendant by his initials. Since the court denied the petition on other grounds, the court did not address the alleged incompleteness of defendant's petition.

Without the benefit of our decision in J.B., supra, the court, in a written opinion, rejected defendant's argument that the unnumbered paragraph in N.J.S.A. 2C:52-4.1(a) applied only to petitions to expunge juvenile adjudications, which are addressed in section 4.1. The court concluded broader application of the provision was warranted in light of the general policy of the expungement statute to benefit one-time offenders. The court relied on State v. A.N.J., 98 N.J. 421, 427 (1985); State v. King, 340 N.J. Super. 390, 398 (App. Div. 2001); and N.J.S.A. 2C:52-32, which states the expungement statute must be interpreted to "provid[e] relief to the one-time offender . . . 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."

On appeal, defendant presents the following points for our consideration:

POINT ONE

PETITIONER'S JUVENILE ADJUDICATIONS DO NOT DISQUALIFY HIM FOR EXPUNGEMENT OF HIS ADULT CONVICTION.

POINT TWO

THE PETITION IS SUFFICIENT.

POINT THREE

JUDGMENTS AND FINAL ORDERS ON EXPUNGEMENT APPLICATIONS SHOULD REFERENCE PETITIONER BY INITIALS ONLY, AND NOT BY FULL NAME.

A. FINAL ORDERS IN EXPUNGEMENT MATTERS GENERALLY SHOULD REFERENCE PETITIONERS ONLY BY INITIALS.

B. BECAUSE JUVENILE JUDICIAL PROCEEDINGS ARE AT ISSUE, THE JUDGMENT AND FINAL ORDER IN THIS CASE SPECIFICALLY SHOULD REFERENCE PETITIONER ONLY BY INITIALS.

The State renews its argument that defendant is statutorily barred from seeking expungement regarding his adult conviction because of his prior juvenile adjudications. In a supplemental letter pursuant to Rule 2:6-11(d), the State urges that J.B., supra, was wrongly decided.

We disagree.

II.

In J.B., supra, a defendant, like D.L.C., appealed from the denial of a petition to expunge an adult conviction because he had prior juvenile adjudications of acts that would constitute adult crimes. We analyzed the unnumbered paragraph in N.J.S.A. 2C:52-4.1(a), which was included in the 1980 statute permitting expungement of juvenile adjudications. It states: "For purposes of expungement, any act which resulted in a juvenile being adjudged a delinquent shall be classified as if that act had been committed by an adult." See J.B., supra, 426 N.J. Super. at 506 (discussing N.J.S.A. 2C:52-4.1(a)).

In view of the legislative history of the 1980 statute, and canons of statutory construction, we construed the quoted sentence to apply only to applications to expunge juvenile adjudications under N.J.S.A. 2C:52-4.1(a). The 1980 law was intended to allow expungement of juvenile adjudications, which was not otherwise permitted; there was no evidence the Legislature intended to make expungement of adult convictions more difficult by treating juvenile adjudications as if they were adult convictions.

We are persuaded by the reasoning in J.B., supra. We comment briefly on the State's argument that the general rule of construction found at N.J.S.A. 2C:52-32 compelled a different result. The State overreads the provision, which is a general statement of policy, and not a universally applicable rule. Indeed, although the provision states the "primary objective" is to provide relief to the "one-time offender," the statute expressly provides relief to certain multiple offenders. For example, a petitioner may obtain expungement of a criminal conviction record despite as many as two prior convictions for disorderly persons offenses. N.J.S.A. 2C:52-2(a). A person may obtain expungement of a disorderly persons conviction record despite as many as three prior convictions for disorderly persons offenses. N.J.S.A. 2C:52-3. Applying our reading of the statute in J.B., supra, to the record before us, D.L.C. was not barred from seeking expungement of his criminal conviction because of his prior juvenile adjudications.

We next address the State's argument that defendant's petition was incomplete, an issue the trial court did not reach. The statute required petitioner to include "[p]etitioner's . . . date of disposition of the matter if no conviction resulted" and "[t]he court's disposition of the matter and the punishment imposed, if any." N.J.S.A. 2C:52-7(e), (f). The statute requires a petitioner to disclose his or her entire record. State v. King, 340 N.J. Super. 390, 398 (App. Div. 2001). It is implicit that a petitioner need disclose only information that is reasonably available. We deem the petition to substantially comply with the statute's requirement:

A canvass of the cases dealing with the application of the equitable doctrine of substantial compliance indicate the following considerations: (1) the lack of prejudice to the defending party; (2) a series of steps taken to comply with the statute involved; (3) a general compliance with the purpose of the statute; (4) a reasonable notice of petitioner's claim, and (5) a reasonable explanation why there was not a strict compliance with the statute.

[Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 353 (2001) (citations omitted).]

Here, the State does not challenge defendant's showing of a diligent, but unsuccessful effort to determine the disposition of two of the juvenile complaints when he was thirteen and fourteen years old. Presumably, were the State able to discover that information, it would have done so. The State alleges no prejudice from the omission of the disposition of those two complaints. Barring defendant's petition because of this minor omission would undermine rather than vindicate the expungement statute's underlying purpose.

As defendant's petition was substantially complete, and there was no statutory bar, defendant was presumptively entitled to expungement. In re Kollman, 210 N.J. 557, 570 (2012) (once petitioner establishes objective elements of N.J.S.A. 2C:52-2(a), he is presumptively entitled to expungement). The State did not present evidence before the trial court to overcome that presumption. See Ibid. Therefore, we reverse and remand for entry of an order of expungement.

Finally, we note the State did not cross-appeal from the court's decision to refer to defendant by initials in the caption and order. We therefore need not address defendant's argument that disclosure of his name undermines the goals of expungement, and would be inconsistent with Rule 1:38-3(b)(7) and (d)(5), which exclude from public access, respectively, expunged records and juvenile delinquency records.

R

1 The order of disposition adjudicating defendant delinquent recites only the complaint numbers. We surmise that a minor difference between the number on the marijuana complaint, and the number on the order of disposition, was a typographical error.

2 Defendant did not obtain the underlying complaints, nor the order of disposition, but provided what appears to be a document from a court file indicating the final disposition of the four complaints. That document did not indicate the statutory provisions defendant violated.

3 One of the co-defendants had the same first name as the person identified as defendant's mother in the numerous juvenile complaints.