IN THE MATTER OF THE EXPUNGEMENT PETITION OF STEVEN W. DELOSA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF THE

EXPUNGEMENT PETITION OF

STEVEN W. DELOSA.

May 20, 2015

Before Judges Yannotti and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No.

M-2014-274.

Trautmann and Associates, L.L.C., attorneys for appellant (Gregg D. Trautmann, on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Keri-Leigh Schaefer, Legal Assistant, on the brief).

PER CURIAM

Petitioner Steven W. DeLosa appeals from a June 2, 2014 Law Division order denying his petition to expunge all records relating to his arrest on a charge of committing a disorderly persons offense. We affirm.

On August 2, 2013, DeLosa was arrested in Holmdel Township and charged with possession or consumption of an alcoholic beverage in a public place or motor vehicle by a person under the legal age, contrary to N.J.S.A. 2C:33 15.

On November 25, 2013, defendant appeared in municipal court. The State agreed to dismiss the disorderly persons offense charge if DeLosa pled guilty to violating a municipal ordinance. The municipal court found DeLosa guilty of violating Holmdel Township Ordinance 3-21.23, proscribing obstructing passage/disorderly assemblage. DeLosa paid a $1000 fine, plus court courts.

On March 19, 2014, DeLosa filed the petition under review, seeking to expunge the records pertaining to his arrest on the alcohol-related charge. The Monmouth County Prosecutor's Office opposed the petition.

In the Law Division, DeLosa argued that an arrest that does not result in a conviction may be expunged "at any time following the disposition of proceedings" if the charge was dismissed. N.J.S.A. 2C:52-6(a). He further argued that N.J.S.A. 2C:52 41 "poses no bar to his expungement application because (a) the alcohol-related charge was dismissed and (b) his initial arrest on alcohol-related grounds was not connected to his municipal ordinance conviction for obstructing passage/disorderly assemblage."

Judge John T. Mullaney, Jr. denied the petition, rejecting DeLosa's argument that the disorderly persons charge had been "dismissed" in the municipal court

First, the proof of disposition provided by petitioner shows that the alcohol-related charge was merely amended to obstructing passage/disorderly assemblage. Second, petitioner submitted no proof that the municipal ordinance violation was . . . based on factual circumstances unconnected to his arrest on the alcohol-related charge. The alcohol-related charge and the amended municipal ordinance violation also share the same docket record, complaint number, dates of offense . . . and arresting officer. The records concerning petitioner's municipal ordinance conviction are therefore inextricably intertwined with his initial arrest on suspicion of underage possession or consumption of alcohol.

Accordingly, the court concluded that all of DeLosa's records are eligible for expungement only as provided by N.J.S.A. 2C:52 4. Pursuant to that statute, the court concluded that DeLosa's records will not be eligible for expungement until November 25, 2015.

DeLosa appeals and raises the following argument

A PETITION FOR THE EXPUNGEMENT OF AN ARREST ASSOCIATED WITH A VIOLATION OF NEW JERSEY'S CRIMINAL STATUTES SHOULD BE GRANTED WHERE THE CRIMINAL CHARGES ARE DISMISSED IN EXCHANGE FOR THE DEFENDANT AGREEING TO PLEAD GUILTY TO A MUNICIPAL ORDINANCE VIOLATION.

We are convinced from our review of the record that this argument lacks substantive merit. We therefore affirm the order denying DeLosa's expungement petition substantially for the reasons stated by Judge Mullaney in the written statement of reasons attached to his June 12, 2014 order. R. 2:11-3(e)(2). We add the following.

"The expungement of criminal records is available only if authorized by legislation." In re G.P.B., 436 N.J. Super. 48, 50 (App. Div. 2014). "There is no constitutional or common law right to the expungement of records relating to a criminal conviction." Ibid.

The parties do not dispute the facts underlying DeLosa's arrest and conviction, but rather dispute the application of N.J.S.A. 2C:52-4 to those facts. The issue presented is therefore a legal issue, which we consider de novo. In re Criminal Records of R.Z., 429 N.J. Super. 295, 300 (App. Div. 2013); In re Ross, 400 N.J. Super. 117, 121 (App. Div. 2008).

The record contains no evidence that the municipal ordinance violation arose from circumstances unrelated to the arrest. As Judge Mullaney noted, the ordinance violation had the same docket record, docket number, dates of offense and arresting officer as the disorderly persons charge.

The judge correctly found that the arrest and the municipal court violation were inextricably intertwined. Therefore, the record fully supports the judge's determination that DeLosa was not eligible to have his arrest expunged before November 25, 2015.

Affirmed.

1 N.J.S.A. 2C:52-4 provides, in pertinent part

In all cases wherein a person has been found guilty of violating a municipal ordinance . . . may, after the expiration of a period of [two] years from the date of his conviction, [or] payment of fine, . . . whichever is later, present a duly verified petition as provided in [N.J.S.A.] 2C:52-7 . . . to the Superior Court in the county in which the violation occurred praying that such conviction and all records and information pertaining thereto be expunged.