IN THE MATTER OF THE EXPUNGEMENT PETITION OF D.H.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3642-08T43642-08T4

IN THE MATTER OF THE

EXPUNGEMENT PETITION

OF D.H.

________________________________________________________________

 

Argued November 17, 2009 - Decided

Before Judges Carchman and Parrillo.

On appeal from the Superior Court of New

Jersey, Law Division, Monmouth County,

Docket No. 2008-0709.

Carey J. Huff, Assistant County Prosecutor,

argued the cause for appellant State of New

Jersey (Luis A. Valentin, Monmouth County

Prosecutor, attorney; Ms. Huff, of counsel

and on the brief).

Robert J. Donaher argued the cause for

respondent D.H. (Walder, Hayden & Brogan,

attorneys; Mr. Donaher, of counsel and

on the brief).

PER CURIAM

Petitioner D.H. pled guilty to a disorderly persons offense of unlawful computer access, N.J.S.A. 2C:20-32, arising from an unlawful criminal background check performed while she was employed by the Monmouth County Prosecutor's Office. Petitioner was sentenced to the minimum fines, and the trial court issued a Forfeiture of Employment Order (forfeiture order).

On July 8, 2009, almost ten years after her October 1999 plea, petitioner filed a petition to expunge her conviction. Judge Neafsey, in the Law Division, granted the relief and entered a Final Order of Expungement. That order not only expunged the conviction but relieved petitioner of the bar against her future public employment. The State appeals, and we affirm.

The facts are not in dispute. On June 2, 1999, petitioner, a detective in the Monmouth County Prosecutor's Office from 1985 to October 1999, conducted a criminal background check on an individual using the Criminal Justice Information System (CJIS) for non-law enforcement purposes. Following an internal affairs investigation, on October 5, 1999, petitioner entered an unconditional plea of guilty to the disorderly persons offense of unlawful computer access, N.J.S.A. 2C:20-32. The plea offer required petitioner to forfeit her position as an investigator. Petitioner was sentenced to $30.00 costs, $50.00 violent crime commission penalty, a safe neighborhood fee of $30.000, and the judge signed the forfeiture order on October 6, 1999. That order provided that "pursuant to N.J.S.A. 2C:51-2, the defendant shall forfeit her public employment and shall be forever disqualified from holding any office or position of honor, trust or profit under the State . . . ."

Petitioner subsequently filed a petition for post-conviction relief (PCR), which was denied, and we affirmed on appeal.

As petitioner had no subsequent offenses, on July 8, 2008, petitioner filed a petition to expunge her conviction. The judge granted the expungement but stayed the order pending appeal. This appeal followed.

A petitioner seeking expungement has the burden of establishing compliance with the provisions of N.J.S.A. 2C:52-3. See In re G.R., 395 N.J. Super. 428, 431 (App. Div.), certif. denied, 193 N.J. 275 (2007). If the petitioner meets this threshold 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 be granted." Ibid. The State urges that the petition for expungement should be denied under N.J.S.A. 2C:52-14B, as the forfeiture order under N.J.S.A. 2C:51-2D must be given "full effect."

N.J.S.A. 2C:51-2(d) mandates forfeiture of employment for a person convicted of an offense involving or touching on his or her public office, position or employment. The forfeiture order is a mandated consequence of a petitioner's guilty plea and is inseparably tied to the underlying conviction. See In re Forfeiture of Public Office of Nunez, 384 N.J. Super. 345, 347 (App. Div.), certif. denied, 187 N.J. 491 (2006). However, "forfeiture of public employment is a 'collateral consequence[]' of a criminal conviction, which is eliminated by an order of expungement." Id. at 349 (citations omitted). "[I]f an order of expungement is granted, the arrest, conviction and any proceedings related thereto shall be deemed not to have occurred[.]" N.J.S.A. 2C:52-27. Although N.J.S.A. 2C:51-2(d) and the forfeiture order at issue both state that petitioner shall be "forever disqualified" from public employment, when a petitioner's underlying conviction is expunged, the petitioner is freed from collateral consequences of that conviction, including a forfeiture order. See Nunez, supra, 384 N.J. Super. at 347; N.J.S.A. 2C:52-27.

The State contends that it has a great interest in preserving petitioner's record in order to protect the public interest. It argues that "most disorderly persons convictions that touch upon the public office held by the offender warrant a permanent forfeiture[,]" and the forfeiture statute "codifies a long-standing policy against retention of offenders in government service." State v. Lee, 258 N.J. Super. 313, 317 (App. Div. 1992).

There is little question but that petitioner has satisfied the technical requirements of the expungement statute, N.J.S.A. 2C:52-3; In re G.R., supra, 395 N.J. Super. at 431, and the State had "the burden of demonstrating by a preponderance of the evidence that there is a statutory bar or that the petition should not be granted." Ibid. See N.J.S.A. 2C:52-14 (providing specific examples warranting denial of the petition, including, under subsection (a), when there is "any other statutory basis for denying relief[,]" and under subsection (b), when "[t]he need for the availability of the records outweighs the desirability of having a person freed from any disabilities . . ."). The petitioner is "presumptively entitled" to expungement if the State does not satisfy this burden. In re G.R., supra, 395 N.J. Super. at 431.

The State's position is not supported by N.J.S.A. 2C:52-14(a). The Legislature has determined that a public employee's record shall not be subject to expungement only when the public employee has been convicted of "any crime" involving or touching the convicted person's public employment. N.J.S.A. 2C:52-2(b) (emphasis added). Petitioner was not convicted of a "crime" but a disorderly person's offense. N.J.S.A. 2C:52-2(b) does not bar expungement in this case. Cf. Nunez, supra, 384 N.J. Super. at 350 (holding that Nunez was not disqualified from future public employment, even without obtaining an expungement, because Nunez's convicted offense did not involve or touch his public employment).

Nor is this a case where, because of the public interest involved, "[t]he need for the availability of the records outweighs the desirability of having a person freed from any disabilities . . . ." N.J.S.A. 2C:52-14(b). The public interest is safeguarded by other statutory provisions. Even after expungement is granted, petitioner is required to divulge information of the expunged offense if she applies for employment in the judiciary or law enforcement. N.J.S.A. 2C:52-27(c) (requiring revelation of expunged records "by a petitioner seeking employment . . . within the judicial branch or with . . . law enforcement . . . and such information shall continue to provide a disability as otherwise provided by law"). "Hence, reading N.J.S.A. 2C:52-27(c) together with N.J.S.A. 11A:4-11, an expunged conviction can be considered with respect to hiring an individual for a law enforcement position . . . ." In re J.B., 386 N.J. Super. 512, 516 (App. Div. 2006). See also In re Criminal Records of H.M.H., 404 N.J. Super. 174, 178 (Ch. Div. 2008) ("[S]hould a person whose records were expunged seek employment with the judicial branch or with a law enforcement or corrections agency, he must reveal to his potential employer the information contained in the expunged records . . . ."); Application of V.S., 258 N.J. Super. 348, 353 (Law Div. 1992).

We recognize the State's concern about petitioner's future employment, yet that concern is abated by a legislative construct that permits expungement while requiring full disclosure. The State failed to establish any statutory or other bar to petitioner's expungement, and the judge correctly granted petitioner relief.

 
Affirmed.

CJIS is an information database used by law enforcement personnel to check the criminal history of a person by using a password issued to that law enforcement officer. CJIS must be used for law enforcement purposes, and use for non-law enforcement purposes may subject the offending party to disciplinary and/or criminal penalties.

N.J.S.A. 2C:52-3 provides:

Any person convicted of a disorderly persons offense or petty disorderly persons offense . . . who has not been convicted of any prior or subsequent crime . . . or of another three disorderly persons or petty disorderly persons offenses, may, after the expiration of a period of 5 years from the date of his conviction, payment of fine, satisfactory completion of probation or release from incarceration, whichever is later, present a duly verified petition . . . that such conviction and all records and information pertaining thereto be expunged.

While the judge gave consideration to his understanding of the sentencing judge's "intent" at the time of entry of the forfeiture order, we deem it unnecessary to consider that issue. We are satisfied that the statutory construct of the expungement procedure as it applies to disorderly persons violations provides sufficient guidance to resolve the issue on appeal.

(continued)

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8

A-3642-08T4

RECORD IMPOUNDED

December 21, 2009