IN THE MATTER OF THE APPLICATION OF J.J.A.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A- 6030-04T36030-04T3

IN THE MATTER OF

THE APPLICATION OF

J.J.A. FOR EXPUNGEMENT

_________________________________________

 

Submitted January 11, 2006 - Decided February 6, 2006

Before Judges Weissbard and Lihotz.

On appeal from Superior Court of New

Jersey, Law Division, Middlesex County,

Indictment No. 203-1-91.

Bruce J. Kaplan, Middlesex County Prosecutor,

attorney for appellant, State of New Jersey

(Simon Louis Rosenbach, Assistant Prosecutor,

of counsel and on the brief).

Respondent did not file a brief.

PER CURIAM

The State appeals from an order of June 6, 2005 granting the petition of J.J.A. to expunge a disorderly persons conviction entered on October 7, 1991. We agree that the conviction was not subject to expungement and therefore reverse.

On January 13, 1991, J.J.A. was charged by complaint with sexual contact, N.J.S.A. 2C:14-3(b). The offense was alleged to have taken place on February 12, 1989. On January 14, 1991, J.J.A. was charged in a three-count indictment charging sexual assault, N.J.S.A. 2C:14-2(c) (count one), sexual contact, N.J.S.A. 2C:14-3(b) (count two), and criminal restraint, N.J.S.A. 2C:13-2 (count three). These offenses were claimed to have occurred on March 31, 1990. The complaint and the indictment related to different victims.

On June 25, 1991, J.J.A. pled guilty to the second count of the indictment, which charged sexual contact, a fourth-degree offense. On October 7, 1991, defendant was sentenced on his plea to a three-year probationary term. Counts one and three were dismissed. On that same day, J.J.A. also entered a guilty plea to the charge embodied in the complaint, as amended to simple assault, N.J.S.A. 2C:12-1(a)(3), a disorderly persons offense. He was sentenced to three years probation, concurrent with the probation imposed on the indictable offense. The term of probation was successfully completed on October 7, 1994.

On February 23, 2005, J.J.A. filed a petition seeking to expunge both convictions. The State objected to the expungement of both convictions, and J.J.A. submitted a letter in lieu of formal brief in support of his application. Without entertaining oral argument, the judge granted J.J.A.'s application and signed an expungement order on June 6, 2005.

The State argues that the disorderly persons conviction was not subject to expungement. It does not contest the expungement of the indictable offense. The State's argument is premised on a straightforward reading of the governing statute, N.J.S.A. 2C:52-3, which reads, in pertinent part, as follows:

Any person convicted of a disorderly persons offense . . . under the laws of this State who has not been convicted of any prior or subsequent crime . . . may, after the expiration of a period of five years from the date of . . . satisfactory completion of probation . . . [file a petition for expungement].

Here, the State argues that J.J.A. was convicted of a "subsequent crime" because the indictable offense took place on March 31, 1990, thirteen months subsequent to the disorderly persons offense, which took place on February 12, 1989. That interpretation is clearly supported by In re F.A.U., 190 N.J. Super. 245 (App. Div. 1983). Although both offenses resulted in convictions on the same day (the day of sentencing - October 7, 1991), the State argues that the statute refers to a prior or subsequent crime, not a prior or subsequent conviction. We agree.

The State acknowledges that in a case under the predecessor of the present statute, Application of Fontana, 146 N.J. Super. 264 (App. Div. 1976), we held that the applicant was entitled to expunge six convictions on the same day because they were committed within a short span of time. In that case, the time frame was about one week. We viewed the criminal conduct "as akin to a 'one night spree' which has generally received consideration in sentencing." Id. at 267. The Court has implied that Fontana's interpretation continues to be valid under the present statute. State v. A.N.J., 98 N.J. 421, 427

n.3 (1985). Nevertheless, even if we assume the continuing viability of Fontana, the two offenses here did not occur within a short span of time; rather, they were fourteen months apart. Under no circumstances could they be considered parts of a "one night spree."

Although J.J.A. has not responded to this appeal, we glean his position from a letter addressed to the judge, responding to the State's objection. There, J.J.A. argued that because the statute is ambiguous, the rule of lenity requires a construction in favor of the defendant, citing to State v. Alexander, 136 N.J. 563, 573 (1994). We reject that argument. First, this is not a penal statute. Second, we discern no ambiguity. In re F.A.U., supra, 190 N.J. Super. at 247. As the State suggests, the Legislature sought to provide "relief" to the one-time offender who has led a life of rectitude and disassociated himself with unlawful activity. . . ." N.J.S.A. 2C:52-32. That objective would not be served by permitting expungement of a disorderly persons offense followed by a commission of an indictable offense over a year later, simply because the accused is fortunate enough to have both cases sentenced on the same day. If J.J.A. had lived a "life of rectitude" after committing the disorderly persons offense, it could have been expunged. But he did not.

While there may be a certain anomaly in permitting expungement of the more serious offense but denying it as to the less serious, it is our role to follow the statute, not to disregard it in order to achieve a more equitable result. State v. A.N.J., supra, 98 N.J. at 427; In re F.A.U., supra, 190 N.J. Super. at 248.

The Order For Expungement of Records dated June 6, 2005 is reversed to the extent that it grants expungement of the disorderly persons offense listed under Summons S996322.

 

(continued)

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5

A-6030-04T3

RECORD IMPOUNDED

February 6, 2006