IN THE MATTER OF THE EXPUNGEMENT APPLICATION OF ROBERT ROMANO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1978-07T41978-07T4

IN THE MATTER OF THE EXPUNGEMENT

APPLICATION OF ROBERT ROMANO.

_______________________________

 

Argued September 29, 2008 - Decided

Before Judges Winkelstein and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. 45-80.

John C. Eastlack, Jr., argued the cause for appellant Robert Romano (Holston, MacDonald, Uzdavinis, Eastlack, Ziegler & Lodge, attorneys; Mr. Eastlack, Jr., on the brief).

Staci L. Scheetz, Assistant County Prosecutor, argued the cause for respondent State of New Jersey (Sean F. Dalton, Gloucester County Prosecutor, attorney; Vincent C. Malfitano, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Appellant Robert Romano appeals from the December 14, 2007 order denying his petition for expungement of a criminal conviction entered against him twenty-six years prior. For reasons that follow, we affirm.

On June 25, 1980, following a motor vehicle stop, appellant was arrested in possession of 173.5 pounds of marijuana. On October 7, 1980, appellant was charged by a Gloucester County Grand Jury with possession of a controlled dangerous substance (CDS), N.J.S.A. 24:21-20 A. 4 (Count One), and possession of a CDS with intent to distribute, N.J.S.A. 24:21-19 A. 1 (Count Two).

On January 9, 1981, appellant pled guilty to Count Two. On July 10, 1981, appellant was sentenced on the conviction to two years of probation conditioned on serving one day incarceration at the Gloucester County Jail. A fine of $5,000 was also imposed. Count One was dismissed, and a confirming of conviction was entered the following day. In sentencing appellant, the trial court reasoned in part:

This matter has not been subject to negotiations. The man has pled guilty reserving his right to appeal a denial of a Motion to suppress. This offense took place on June 25, 1980 when this defendant was stopped by the State Police for weaving in traffic. As a result thereof, a consent search was obtained and they found five large bags of vegetation which proved to be positive for 173.5 pounds of marijuana. The first count of this indictment was agreed to be dismissed by the prosecutor at the time of sentence[,] leaving count two which has to be sentenced upon. The defendant apparently was employed to transport to Fort Lauderdale to Montreal or someplace within said States a load of marijuana. He was employed for it. He was to be paid $1,000.00 for the trip, $800.00 American dollars is what he was supposed to be paid. . . . He has been employed as a teacher since December of 1980, and earns $170.00 gross Canadian [m]oney per week. The only assets he has [are] a 1977 Fiat and a guitar. He does owe quite a bit of money. . . . He claims that he got involved in this because he was trying to live on unemployment compensation and could not cover his expenses. He saw his friends prospering from their involvement with the delivery of marijuana and decided to make some extra money for himself.

On September 14, 2007, appellant filed a petition for expungement, pursuant to N.J.S.A. 2C:52-1 to -32 (the expungement chapter). The State objected, contending that the application was barred by N.J.S.A. 2C:52-2c. In denying appellant's petition, Judge Allen-Jackson reasoned:

It involves transporting a very large amount of marijuana, 173.5 pounds, from Canada to Florida which means that it involves bringing into the country from outside of the country an illegal substance and obtaining the [remuneration] for that service. Although the [c]ourt at this point has the ability to be able to consider whether the previous offense was a sale, it is clear that the [appellant's] act was part of the chain that placed that marijuana, or had the potential of placing that marijuana had it not been confiscated, into the stream of commerce for a fee. He received the $1,000 in order to transport that marijuana to Florida.

The amount itself is not for the [c]ourt's consideration. I do not find that the State has the burden of showing that his particular [appellant] was the one that would be standing [on] the corner and actually selling the marijuana. But his activity of bringing it into the country, that large a quantity, and transporting it to Florida is an act that tends to show that it is for sale given that it's 175 pounds.

I do not find that this is the same as someone that is sharing, that gives a gift. I don't think that 175 pounds of marijuana was going to be just distributed at its ultimate destination as a holiday gift. I do find that this is not an exception that would allow the court to expunge this particular petition. It does not fall under the appropriate guidelines. The State has objected to it. I do find that that objection has a rational basis. And again, the [c]ourt is going to deny the application for expungement.

On appeal, appellant argues:

POINT I.

BASED UPON THE UNCONTROVERTED STIPULATED FACTS, NO EVIDENCE WAS PRESENTED TO THE TRIAL COURT BELOW DEMONSTRATING A SALE OF CDS, AND THEREFORE, THE DEFENDANT'S PETITION FOR EXPUNG[E]MENT SHOULD BE GRANTED SINCE THE STATE FAILED TO MEET[] ITS BURDEN TO DEMONSTRATE A BASIS FOR DENIAL[.]

POINT II.

THE TRIAL COURT'S FINDING THAT THE DEFENDANT PLACED THE MARIJUANA FOR WHICH HE WAS CONVICTED "IN THE STREAM OF COMMERCE" AND THE EQUATING OF THAT WITH AN "INTENT TO SELL" VIOLATES THE PRINCIP[LES] OF STATUTORY CONSTRUCTION AND IS CONTRARY TO THE STATUTORY REQUIREMENT TO CONSTRUE THE STATUTE SO AS TO FAVOR EXPUNG[E]MENT OF RECORDS OF ONE-TIME OFFENDERS[.]

I.

Appellant argues that the trial judge erred in denying his petition for expungement because he is "presumptively entitled" to the relief requested, and the State "has not met its burden of proof . . . that [the] expung[e]ment petition should be denied." Appellant contends that the exception of N.J.S.A. 2C:52-2c is not applicable because there is no evidence in the record that he possessed the marijuana with "'intent to sell,'" only that he possessed [it] for the purpose of dispensing or distributing it "'without a sale,'" (quoting In re G.R., 395 N.J. Super. 428, 433 (App. Div. 2007)). Appellant asserts that the trial judge erred in concluding that he possessed the marijuana with intent to sell based on her determination that he was part of a "chain" of individuals that placed the marijuana into the stream of commerce in consideration of a fee. We disagree.

An appellate court's scope of review of a trial court's factual determination is limited. When the appellate court is satisfied that the findings of the trial court could reasonably have been reached on sufficient, credible evidence present in the record, "its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal." State v. Johnson, 42 N.J. 146, 162 (1964). "That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect." Ibid.

However, if the appellate court determines that the factual finding of the trial court "is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . then, and only then, it should appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid. (internal citations omitted). This exception applies when the appellate court concludes "that the [trial court] went so wide of the mark, a mistake must have been made. This sense of 'wrongness' can arise in numerous ways -- from manifest lack of inherently credible evidence to support the finding, obvious overlooking or under-evaluation of crucial evidence, a clearly unjust result, and many others." Ibid.

The purpose of the expungement chapter is to "provid[e] relief to the one-time offender who has led a life of rectitude and disassociated himself [or herself] with unlawful activity." N.J.S.A. 2C:52-32. The burden of satisfying the requirements of the chapter is on the petitioner. G.R., supra, 395 N.J. Super. at 431. "Where the petitioner meets the burden, the State has the burden of demonstrating by a preponderance of the evidence that there is a statutory bar or that the petition should not [otherwise] be granted." Ibid. If the State fails to meet its burden, "[t]he petitioner is presumptively entitled to expungement." Ibid.

However, convictions for certain serious drug offenses are barred from expungement. N.J.S.A. 2C:52-2c. That statute provides in pertinent part:

c. In the case of conviction for the sale or distribution of a controlled dangerous substance or possession thereof with intent to sell, expungement shall be denied except where the crimes relate to:

(1) Marijuana, where the total quantity

sold, distributed or possessed with

intent to sell was 25 grams or

less . . . .

[N.J.S.A. 2C:52-2c(1).]

N.J.S.A. 2C:52-2c incorporates the terms "for the sale or distribution of a controlled dangerous substance" and "or possession thereof with intent to sell." In previously construing the statute, we held that the terms "sale" and "distribution" are not synonymous. State v. P.L., 369 N.J. Super. 291, 294 (App. Div. 2004). We stated that because the term "distribute" is more broadly defined than "sell," "a person need not intend to sell CDS in order to be convicted of possession with the intent to distribute CDS; it is sufficient, for example, that a person intend to give CDS to another as a gift." Ibid. Therefore, when applying those terms to the expungement chapter, N.J.S.A. 2C:52-2c "does not, on its face, bar the expungement of criminal records in the case of a conviction for possession of a CDS with intent to dispense or distribute." G.R., supra, 395 N.J. Super. at 432. The statute only bars expungement for a conviction of possession of a CDS "with intent to sell." Id. at 433.

In deciding whether a petitioner convicted of possession of a CDS is entitled to expungement, we have instructed trial judges to look to facts outside the judgment of conviction. Ibid. "If . . . the judge finds that these facts bespeak that the petitioner possessed CDS with the intent to sell, the petition must be denied because it is barred by [N.J.S.A. 2C:52-2c]. If the judge finds that the petitioner possessed the CDS with the intent of distribution without sale, the petition is not barred." Id. at 433-34.

Here, the statement of reasons attached to the judgment of conviction discloses that defendant was paid $1,000 by a third party to transport 173.5 pounds of marijuana through the State of New Jersey to either Montreal or another place within the United States. The appellant engaged in this unlawful activity for the purpose of making extra money for himself because he was unemployed and was not able to support himself on the unemployment compensation benefits he was then receiving. The trial judge concluded from those facts that the seller was one "link" in the chain of individuals engaged in the sale of marijuana, even though he himself did not sell the marijuana to the end user.

A trier of fact should not only use logic in determining the inferences that can be drawn from the evidence, but also must use his or her common sense in doing so. See Model Jury Charge, Civil 1.12J2. Accordingly, we find no error in the trial judge reaching her conclusion based on the facts contained in the statement of reasons for sentencing. The conclusion that the trial judge reached is supported by a reasonable inference from the significant circumstances contained in the statement of reasons: the extremely large quantity of marijuana found in possession of the appellant; the significant distance that defendant had transported the marijuana before he was stopped for a motor vehicle violation in New Jersey; and his admission that he was paid $1,000 for his illegal activity. The judge used common sense in drawing reasonable inferences from those facts, finding that appellant transported the marijuana in exchange for a fee for a third party to eventually sell the marijuana to others. See State v. Hurdle, 311 N.J. Super. 89, 99 (App. Div. 1998) (determining that "there was sufficient evidence from which the jury could reasonably infer defendant was a knowing participant in a transaction to buy and resell cocaine" where the evidence included defendant's constructive possession of a large quantity of the drug).

We are satisfied that the judge's interpretation conforms with the intent of the expungement exception contained in N.J.S.A. 2C:52-2c. To conclude otherwise would be to construe the statute contrary to what we believe was the intent of the Legislature - to grant expungement to one-time offenders, except when those one-time offenders' convictions arise out of serious drug offenses. Transporting 173.5 pounds of marijuana for eventual sale by a third party to the end users is a serious drug offense. We are satisfied that the trial judge's decision "effectuate[s] the legislative intent." State v. A.N.J., 98 N.J. 421, 428 (1985). Because we determine that the judge's conclusion was reached on sufficient, credible evidence in the record, we affirm. Johnson, supra, 42 N.J. at 162.

Affirmed.

The charge on which appellant was convicted, N.J.S.A. 24:21-19 A. 1 has been repealed and superseded by N.J.S.A. 2C:35-5a(1). Pursuant to subsection b(10) of the statute, a defendant convicted of possession of twenty-five pounds or more of marijuana with intent to distribute "is guilty of a crime of the first degree."

Because neither the State nor appellant possessed copies of the transcripts of appellant's plea or sentence proceedings and the court did not possess the stenographer's notes or a sound tape recording from which to have the proceedings transcribed, the plea and sentence having occurred over twenty-six years earlier, the parties stipulated at the hearing that the only facts to be considered on the application were those contained in the court's statement of reasons for sentencing.

The trial judge interpreted the sentencing judge's statement of reasons for imposing sentence to mean that appellant was arrested while transporting marijuana from Montreal to Fort Lauderdale or to another place within the United States. Appellant implies in his reply brief that the judge's interpretation of the statement of reasons was not correct and that he was arrested while transporting the marijuana from Fort Lauderdale to Montreal or some other place within the United States. Because the statement of reasons is ambiguous using the preposition "to" twice rather than using it in conjunction with the preposition "from," we discern no error in the judge's interpretation of the statement of reasons for imposing sentence. This is particularly so because neither appellant nor the prosecutor questioned the trial judge's interpretation of the statement of reasons at oral argument. Moreover, even if the judge's interpretation was incorrect, we conclude that the error was harmless because the route that appellant was traveling on the day of his arrest is of no importance as to whether he is entitled to expungement.

(continued)

(continued)

11

A-1978-07T4

December 5, 2008