IN THE MATTER OF THE EXPUNGEMENT OF THE CRIMINAL RECORDS OF A.W.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5356-11T3

IN THE MATTER OF THE

EXPUNGEMENT OF THE

CRIMINAL RECORDS OF

A.W.

_____________________

March 28, 2013

Argued March 11, 2013 - Decided

Before Judges Fasciale and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. MX-658-11.

Akil S. Roper argued the cause for appellant A.W. (Legal Services of New Jersey, attorneys; Mr. Roper and Melville D. Miller, Jr., on the brief).

Gary A. Thomas, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent State of New Jersey (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Thomas, on the brief).

PER CURIAM

Petitioner appeals from a May 15, 2012 order dismissing her petition to expunge numerous arrests pursuant to N.J.S.A. 2C:52-6. We remand for further proceedings consistent with this opinion.

From 1993 to 2004, when petitioner was in her twenties and thirties, she was arrested approximately fifty-five times. Most of the arrests pertained to municipal court matters. The arrests resulted in one indictable conviction,1 twelve disorderly persons convictions, and forty-three dismissals.

In November 2011, petitioner filed a petition to expunge her arrests.2 In a November 7, 2011 order, the judge scheduled an expungement hearing for January 13, 2012, which was subsequently adjourned. In April 2012, a representative of the expungement unit of the prosecutor's office notified petitioner that the State would not object to expunging the dismissed arrests. On May 10, 2012, however, the representative informed petitioner that

[i]t is with regret that I advise [you] that the New Jersey State Police and the Essex County Prosecutor's Office are filing objections to you receiving a final order of Expungement [in] light of your extensive criminal history. [T]hese agencies believe that it is not in the public's interest for the [e]xpungement to be granted. Please see N.J.S.A. 2C:52-2, . . . 2C:52-4, . . . [and] 2C:52-32.

On May 15, 2012, the judge dismissed the petition without conducting a hearing. On May 16, 2012, petitioner wrote the judge a two-page letter, referenced an expungement hearing that she expected would occur on May 25, 2012, and then outlined her arguments in favor of expungement. Petitioner admitted that she had a drug problem that led to her arrests. Petitioner stated, however, that she benefited from drug treatment and was rehabilitated. She asserted that she overcame her addiction in 2004, moved to a homeless shelter away from her familiar drug-related surroundings, and has since led a law-abiding life. She stated that

I have taken many steps to be a good citizen and live a positive lifestyle. I got married, and have been a loving wife and mother to my children. I have been working with the developmentally disabled population for longer than three years and am currently employed. In May 2011, I graduated from . . . College with an Associate's Degree in Human and Social Services. Currently[,] I am a full time student [in] College studying social work with a minor in substance abuse counseling. I am entering my senior year and have a 3.0 GPA. I am a board member for [a homeless shelter facility], which is [where] I once lived. . . . . I am a committee member for [t]he United Way . . . . I am involved with [a college] Readers [club], a club . . . that provide[s] books to schools in low income areas in New Jersey.

. . . .

I have had no violations or offenses in over [eight] years. I have been . . . a contributing member of my community doing public speaking to other substance abusers and adolescents regarding the dangers and implications of the lifestyle I used to have. . . . I am a rehabilitated person. I am pursuing a Bachelor's Degree in Social Work with a minor in substance abuse. My goal is to work with troubled teens, using my previous mistakes as a cautionary tale . . . . My plan . . . is to seek employment, work for a couple of years[,] and return to school to study for my Master's Degree.

Without conducting the May 25, 2012 hearing, the judge acknowledged petitioner's letter and issued a three-page written opinion dated May 31, 2012 "affirm[ing his] previous . . . order denying [the] expungement petition in its entirety, without the ability to re-file at a later date."

In disposing of the request to dismiss the arrests, the judge relied on N.J.S.A. 2C:52-14b, which provides that expungement will be denied if "[t]he need for the availability of the [criminal] records outweighs the desirability of having a person freed from any disabilities." The judge balanced these interests in favor of the State. The judge also found petitioner falsely claimed that she led a law-abiding life since 2004. He reviewed her criminal records and concluded that she was convicted of engaging in prostitution in 2005. This appeal followed.

On appeal, petitioner argues that the judge erred by denying her petition based on N.J.S.A. 2C:52-14b. She also contends that the judge misconstrued her criminal records and abused his discretion by making a credibility finding without conducting a hearing.

In reviewing the court's exercise of discretion, we first determine whether the judge applied the law correctly. In re LoBasso, 423 N.J. Super. 475, 496 (App. Div. 2012). "Assuming no error of law, we defer to a trial court's exercise of discretion so long as it was not 'clearly unreasonable in the light of the accompanying and surrounding circumstances.'" Ibid. (quoting Smith v. Smith, 17 N.J. Super. 128, 132-33 (App. Div. 1951), certif. denied, 9 N.J. 178 (1952)).

We begin by addressing the judge's reliance on N.J.S.A. 2C:52-14b for dismissing her petition. Petitioner is permitted to seek an expungement of her dismissed arrests pursuant to N.J.S.A. 2C:52-6, which provides, with exceptions not relevant here, that a petition for expungement may be filed any time after criminal charges have been dismissed, a defendant has been acquitted of the charges, or there has been another disposition of the charges without a conviction or finding of guilt. Petitioner proceeded in accordance with this statute.

The State may object to an expungement petition pursuant to N.J.S.A. 2C:52-14, which provides in relevant part that

[a] petition for expungement . . . shall be denied when:

. . . .

b. The need for the availability of the

records outweighs the desirability of having

a person freed from any disabilities . . . .

To prevail on its objection, the State must satisfy this burden by a preponderance of the evidence. State v. XYZ Corp., 119 N.J. 416, 423-24 (1990).

Prior to the dismissal of the petition, the State did not argue that the judge should deny petitioner's request to dismiss her arrests pursuant to N.J.S.A. 2C:52-14b. We acknowledge that, thereafter, the State submitted a May 25, 2012 letter in which an assistant prosecutor raised a belated objection based on N.J.S.A. 2C:52-14b.3 "An application may be denied under this subsection only following objection of a party given notice pursuant to [N.J.S.A.] 2C:52-10 and the burden of asserting such grounds shall be on the objector." N.J.S.A. 2C:52-14b (emphasis added). The notice provision outlined in N.J.S.A. 2C:52-10, provides that "service shall be made within [five] days from the date of the order setting the date for the hearing upon the matter." The State failed to comply with this provision by submitting its May 25, 2012 letter after the judge dismissed the petition, but before he issued his May 31, 2012 written decision. We discern from the record that petitioner was not provided a sufficient opportunity to respond to the May 25, 2012 letter, and there is no proof that she in fact did respond to it.

Rather, the State objected to the petition based on N.J.S.A. 2C:52-2 (regarding indictable offenses), N.J.S.A. 2C:52-4 (regarding convictions for violations of municipal ordinances), and N.J.S.A. 2C:52-32 (indicating that a primary objective of the expungement statute is "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"). Thus, the State initially opposed the petition by arguing that "it is not in the public's interest for [petitioner's e]xpungement to be granted."

Without affording petitioner an adequate opportunity to respond to the State's belated N.J.S.A. 2C:52-14b contention, the judge concluded that the State met its burden. Furthermore, the judge provided insufficient reasons in his written decision for his conclusion that the State satisfied its N.J.S.A. 2C:52-14b burden. The record discloses that before 2004, petitioner used a number of aliases. Even if that is so, there is insufficient evidence in the record from which to conclude that the need for the availability of her arrest records outweighs the desirability of having petitioner freed from any disabilities resulting from her arrest record. This is especially so because her conviction records presumably reflect various aliases and other relevant information, obviating the need for arrest records. In fact, the State never timely contended that the availability of her arrest records was relevant. Thus, we direct the judge to address these issues fully on remand.

Next, petitioner argues that the judge misconstrued her criminal record and concluded that she was unworthy of belief, all without conducting a hearing. Here, the judge reviewed her criminal records and concluded that petitioner "falsely claim[ed]" that she led a law-abiding life since 2004 because of a purported 2005 municipal court conviction. Petitioner disputes that finding and maintains that her 2005 appearance in municipal court was unrelated to a new arrest and did not result in a conviction. She asserts that had she been afforded a hearing on her expungement petition, she would have established conclusively that she led an arrest-free life since 2004. We are unable to resolve this disputed fact and, as a result, a hearing is necessary. Evaluating whether petitioner led a law-abiding life since 2004 is relevant to the court's balancing of the competing interests under N.J.S.A. 2C:52-14b.

1 On December 23, 1996, petitioner was convicted of fourth-degree obstruction of the administration of justice, N.J.S.A. 2C:29-1.

2 The petition also sought to expunge her entire criminal record. On appeal, however, petitioner seeks to overturn only that part of the order denying her attempt to expunge her dismissed arrests. She concedes that her convictions will remain on her record.

3 We received a copy of the State's May 25, 2012 letter on the day after oral argument on this appeal.