IN THE MATTER OF THE EXPUNGEMENT OF THE CRIMINAL RECORD OF J.G.B

 
(NOTE: The status of this decision is .)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4807-08T44807-08T4

IN THE MATTER OF THE EXPUNGEMENT

OF THE CRIMINAL RECORD OF J.G.B.

__________________________________

 

Submitted March 9, 2010 - Decided

Before Judges Grall and LeWinn.

On appeal from Superior Court of New

Jersey, Law Division, Ocean County.

Dasti, Murphy, McGuckin, Ulaky, Cherkos

& Connors, attorneys for appellant

J.G.B. (Christopher K. Koutsouris, of counsel and on the brief).

Marlene Lynch Ford, Ocean County

Prosecutor, attorney for respondent

State of New Jersey (Samuel Marzarella,

Supervising Assistant Prosecutor, of

counsel; William Kyle Meighan, Assistant

Prosecutor, on the brief).

PER CURIAM

J.G.B. appeals from the denial of a verified petition for expungement. After review of the record in light of the arguments presented, we affirm.

The pertinent facts are as follows. J.G.B. sought to expunge a conviction for third-degree theft by deception, N.J.S.A. 2C:20-4. The judgment was entered in October 1997. In addition, J.G.B. had a prior conviction for a Class A misdemeanor in New York, criminal possession of a controlled substance, N.Y. Penal Law 220.03. The term controlled substance is defined to exclude "marihuana" but include "concentrated cannabis." N.Y. Penal Law 220.00(5). The sentence for a Class A misdemeanor is a term "fixed by the court [that] shall not exceed one year." N.Y. Penal Law 70.15(1); cf. N.Y. Penal Law 70.15(2) (providing a sentence not to exceed three months for a Class B misdemeanor).

"[A] petition for expungement filed pursuant to chapter 52 of the Code shall be denied when '[a]ny statutory prerequisite including any provision of this chapter, is not fulfilled or there is any other statutory basis for denying relief.'" State v. H.G.G., 202 N.J. Super. 267, 272-73 (App. Div. 1985) (quoting

N.J.S.A. 2C:52-14(a)). One of the statutory prerequisites is that the person be one who "has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction . . . ." N.J.S.A. 2C:52-2(a); see H.G.G., supra, 202 N.J. Super. at 273.

The State opposed J.G.B.'s application on the ground that his conviction for a Class A misdemeanor in New York barred expungement of his conviction for a third-degree crime in New Jersey. J.G.B. contended that a Class A misdemeanor in New York cannot be deemed a "crime" within the meaning of N.J.S.A. 2C:52-2(a). In the alternative, he argued that the offense he committed in New York is analogous to disorderly persons offenses defined in N.J.S.A. 2C:35-10(a)(4), possession of less than fifty grams of marijuana or five grams or less of hashish, and N.J.S.A. 2C:35-10(c), knowingly obtaining a controlled dangerous substance and failing to deliver the contraband to the nearest law enforcement officer.

The trial judge, relying on statutes that define the term "crime" to include offenses for which the maximum penalty authorized exceeds six months, N.J.S.A. 2C:1-4(a); N.J.S.A. 2C:44-4(c), concluded that J.G.B. was not entitled to relief. As we understand the judge's decision, he rejected J.G.B.'s attempt to equate his New York conviction with the disorderly persons set forth in N.J.S.A. 2C:35-10, on the ground that the elements are not comparable.

On appeal defendant argues:

I. THE COURT BELOW INCORRECTLY CONSTRUED

N.J.S.A. 2C:1-4 AS STANDING FOR THE PROPOSITION THAT A "CLASS A MISDEMEANOR" IN THE STATE OF NEW YORK IS DESIGNATED AS A CRIME IN THE STATE OF NEW JERSEY.

II. THE LAW DIVISION'S RELIANCE ON N.J.S.A.

2C:44-4(c) TO DENY THE PETITION FOR EXPUNGEMENT IS MISPLACED AS THAT PORTION OF THE CRIMINAL CODE CONCERNS ITSELF ONLY WITH SENTENCING OF NEW JERSEY CONVICTIONS.

III. THE COURT BELOW ERRED IN FINDING THAT

THE OFFENSE TO [SIC] WHICH THE PETITIONER WAS CONVICTED IN NEW YORK WAS NOT ANALOGOUS TO N.J.S.A. 2C:35-10(c).

IV. THE LAW DIVISION'S RELIANCE ON N.J.S.A.

2C:44-4(c) TO DENY THE PETITION FOR EXPUNGEMENT IS MISPLACED AS THAT PORTION OF THE CRIMINAL CODE CONCERNS ITSELF ONLY WITH SENTENCING OF NEW JERSEY CONVICTIONS.

Not one of the arguments presented has sufficient merit to warrant discussion in a written opinion beyond the brief comments that follow. While the expungement statutes, N.J.S.A. 2C:52-1 to -32, do not specify how courts are to determine whether a conviction in another jurisdiction constitutes a "crime" within the meaning of N.J.S.A. 2C:52-2(a), the Legislature has addressed the issue elsewhere. In the context of sentencing, courts are directed to assign convictions imposed under the law of other jurisdictions the same significance as a conviction for a "crime" under the laws of this State based upon the duration of the sentence authorized by law. N.J.S.A. 2C:44-4(c). "If a sentence of imprisonment in excess of 6 [six] months was authorized under the law of the other jurisdiction," then the conviction "shall constitute a prior conviction of a crime." Ibid.; see also N.J.S.A. 2C:1-4a (providing that for purposes of the Constitution of this State, an offense is a crime "if a sentence of imprisonment in excess of 6 [six] months is authorized").

Because the Legislature has given courts clear direction on how to assess the relevance of a conviction obtained in another jurisdiction for purposes of sentencing, we see no basis for concluding that the Legislature intends a different approach in the context of expungement. Contrary to J.G.B.'s claim, N.J.S.A. 2C:52-32, which directs courts to construe the expungement statutes in light of "the primary objective of providing relief to the one-time offender," has no relevance to identification of offenses in other jurisdictions that are properly deemed to constitute crimes.

Affirmed.

 

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A-4807-08T4

March 23, 2010