IN THE MATTER OF HERBERT CELLER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2639-07T42639-07T4

IN THE MATTER OF

HERBERT CELLER

_______________________________

 

Submitted November 19, 2008 - Decided

Before Judges Waugh and Newman.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 270-70.

Evan F. Nappen, attorney for appellant Herbert Celler.

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent State of New Jersey (Patricia S. Toreki, Assistant Prosecutor, on the brief).

PER CURIAM

Petitioner Herbert Celler appeals from the order dismissing with prejudice his petition which sought, in part, expungement of his arrest and conviction for armed robbery.

The relevant facts may be summarized as follows. On December 11, 1997, an Ocean County Grand Jury returned Indictment No. 270-70, charging petitioner and a co-defendant with an armed robbery of a Sunoco station, contrary to the provisions of N.J.S.A. 2A:141-1 and N.J.S.A. 2A:151-5 (count one). Tried by a jury, petitioner was found guilty of armed robbery and sentenced to an indeterminate term at the Youth Reception and Correction Center. This sentence was suspended and petitioner was placed on probation for three years.

N.J.S.A. 2C:52-2(b) relates to pre-code offenses and describes those convictions which are not eligible for expungement. N.J.S.A. 2C:52-2(b) reads in relevant part:

Records of conviction pursuant to statutes repealed by this Code for the crimes of murder, manslaughter, treason, anarchy, kidnapping, rape, forcible sodomy, arson, perjury, false swearing, robbery, embracery, or a conspiracy or any attempt to commit any of the foregoing, or aiding, assisting or concealing persons accused of the foregoing crimes, shall not be expunged.

Petitioner contends that, because "robbery" is expressly mentioned as barred from expungement, "armed robbery," even though a more serious crime, is expungeable. We disagree and affirm.

N.J.S.A. 2A:141-1 defined robbery as follows:

Any person who forcibly takes from the person of another, money or personal goods and chattels, of any value whatever, by violence or putting him in fear, is guilty of a high misdemeanor and shall be punished by a fine of not more than $5,000, or by imprisonment for not more than 15 years, or both.

N.J.S.A. 2A:151-5 provided additional sentences for armed criminals. It was a sentencing enhancement statute not limited to robbery but increased the sentences and penalties for various crimes, including robbery, when they are committed while armed with a weapon.

N.J.S.A. 2C:15-1(b) is the successor statute to N.J.S.A. 2A:141-1 and 2A:151-5. Like its source statute, it provides that the possession of a weapon during a robbery raises the degree of the crime, thereby exposing the perpetrator to an enhanced sentence. Convictions for violations of N.J.S.A. 2C:15-1 are precluded from expungement.

In construing the statute, we presume that the Legislature intended a logical and consistent application. The overriding goal is to determine the legislative intent. Hubbard v. Reed, 168 N.J. 387, 392 (2001) (quoting State, Dep't of Law & Pub. Safety v. Gonzalez, 142 N.J. 618, 627 (1995). In In re Petition for the Expungement of W. S., 367 N.J. Super. 307 (App. Div. 2004), this court held that a conviction for sexual assault was ineligible for expungement even though the text of N.J.S.A. 2C:52-2b contained only the phrase "aggravated sexual assault." Id. at 309. The word "assault" was not included as a separate offense. Ibid. Even though sexual assault was a lesser offense than aggravated sexual assault, we held that the offense was not expungeable. Ibid.

Here, we are confronted with the reverse situation from what was presented in W.S., supra. Robbery is a crime of a lesser degree than armed robbery. If we determined that the lesser offense was not expungeable in W.S., clearly the more serious offense would not be expungeable here. It would be irrational, illogical and contrary to the legislative intent to make the lesser degree crime of robbery eligible for expungement while the more serious offense of armed robbery was ineligible for expungement.

We further noted in W.S. that the Legislature intended to prohibit expungement of convictions for serious violent crimes regardless of the degree of the offense. Id. at 311. This court explicitly mentioned N.J.S.A. 2C:15-1 as one of the statutes for which expungement is prohibited, regardless of the degree of the crime. Id. at 312. The pre-code statutory provisions should be treated no differently.

Petitioner contends that the "Rule of Lenity" and the "Negative Implication Rule" support his claim of entitlement to expungement. We reject his contentions.

The rule of lenity applies where reasonable doubt persists about a criminal statute's intended scope even after language and structure, legislative history, and motivating policies of the statute have been considered. See State v. Gelman, 195 N.J. 475, 482-83 (2008). "The doctrine of lenity is founded on the long-standing and fundamental principle that a person facing a criminal charge is entitled to 'fair warning . . . of what the law intends to do if a certain line is passed." Id. at 482 (quoting United States v. Bass, 404 U.S. 336, 347-48, 92 S. Ct. 515, 522, 30 L. Ed. 2d 488, 496 (1971) (citations omitted)). Here, petitioner had already been convicted of the criminal charge. Whether that specific charge could later be expungeable was not subject to a rule of lenity analysis. Even if it were, there is no reasonable doubt about the legislative intent of the expungement statute. Thus, the rule of lenity would be inapplicable in any event.

The same may be said with regard to the negative implication rule. Once more there is no doubt that the statute included a reference to the crime of robbery, which was not limited by any statutory reference. There is no question that the statute prohibiting expungement included a reference to the crime of robbery and included the more serious offense of an armed robbery.

We can only repeat what we said in W.S., that the Legislature's purpose is to be ascertained and followed, "statutes are to be read sensibly rather than literally." Id. at 311 (quoting Schierstead v. City of Brigantine, 29 N.J. 220, 230 (1959)).

We are satisfied that the trial judge properly denied expungement of petitioner's armed robbery conviction in his well reasoned oral decision of January 17, 2008.

Affirmed.

 

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A-2639-07T4

December 10, 2008