IN THE MATTER OF THE PETITION OF ANDREW FRANK FOR AN EXPUNGEMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2743-09T2

IN THE MATTER OF THE PETITION OF

ANDREW FRANK FOR AN EXPUNGEMENT.

__________________________________

March 30, 2011

Submitted March 9, 2011 - Decided

Before Judges Sapp-Peterson and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 97-04-0787.

James N. Butler, Jr., attorney for appellant Andrew Frank.

Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent State of New Jersey (Carey J. Huff, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Andrew Frank appeals from the February 3, 2010 Law Division order denying his petition for expungement of all evidence of his conviction for fourth-degree conspiracy to distribute a controlled dangerous substance (CDS), N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5b(12). We affirm.

On April 12, 1996, an undercover narcotics detective from the Monmouth County Prosecutor's Office, with assistance from a confidential informant, purchased marijuana from defendant for $140. A New Jersey State Police certified laboratory report confirmed defendant had sold 27.49 grams of marijuana. On April 30, 1997, a grand jury indicted defendant for fourth-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5b(12), and fourth-degree distribution of a CDS, N.J.S.A. 2C:35-5b(12). Defendant was also charged with possession of marijuana, a disorderly persons offense.

Defendant applied for but was rejected from the Pre-Trial Intervention Program. He then retained an attorney, who negotiated a plea agreement. Defendant pled guilty to an amended charge of fourth-degree conspiracy to distribute CDS, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5b(12). Defendant does not dispute that he gave a factual basis for the plea. On February 6, 1998, the trial judge sentenced defendant to a one-year probationary term and imposed the appropriate fine, penalties and conditions of probation.

Defendant completed his probationary term on February 6, 1999. He filed a pro se petition for expungement on August 12, 2009. In opposition, the State argued that N.J.S.A. 2C:52-2c barred expungement for any conviction involving the intent to sell a CDS.

Defendant then retained his prior attorney, who submitted a brief arguing that defendant is eligible for expungement because he pled guilty to conspiracy to distribute CDS, not distribution of CDS, and conspiracy is not one of the enumerated reasons for denying expungement. At oral argument counsel objected to the judge's reliance on the State Police laboratory report.

Judge Perri denied the petition, concluding that N.J.S.A. 2C:52-2c1 bars expungement. Citing In re G.R., 395 N.J. Super. 428, 432 (App. Div.), certif. denied, 193 N.J. 275 (2007), the judge noted that "for the purpose of evaluating whether a conviction is eligible for expungement, the Court must look to the facts surrounding the conviction to determine if [defendant committed] the underlying possession of the CDS . . . with intent to sell, as opposed to intent to dispense or distribute without a sale." Citing In re D.A.C., 337 N.J. Super. 493, 496-97 (App. Div. 2001), the judge noted that an accomplice to an offense specified in N.J.S.A. 2C:52-2c is not eligible for an expungement "where a principal in the commission of the same crime would also not be eligible," and that "'[f]or an accomplice to be convicted of the same crime as the principal, each must be determined to have . . . the same mental state." Finally, the judge quoted N.J.S.A. 2C:5-2a, the conspiracy statute, and noted that "to be guilty of conspiracy, a person must agree to commit a crime and, therefore, have the mental state to commit the crime."

Applying the above to defendant, the judge concluded that

[defendant] pled guilty to agreeing to distribute or agreeing to facilitate the distribution of marijuana. He is, therefore, just as culpable as the individual who actually engaged in the distribution. Indeed, the issue of intent is that it is one of the primary focuses with regard to the expungement statute. Under the logic of [In re] D.A.C., the petitioner's conviction for conspiracy falls within the [N.J.S.A. 2C:52-2c] bar.

. . . .

Finally, the [c]ourt does . . . note that the [defendant] has failed to show that he did not have the intent to sell CDS. . . . In this case, the plea to the conspiracy to distribute is sufficient to indicate the intent of the defendant.

Judge Perri did not address defendant's challenge to the State Police laboratory report. This appeal followed.

On appeal, defendant contends that Judge Perri committed reversible error in denying his petition and failing to address the weight of the marijuana defendant had sold. We have considered these contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Perri in her well-reasoned oral opinion rendered on January 15, 2010. However, we make the following brief comments.

"Generally, a guilty plea constitutes a waiver of all issues which were or could have been addressed by the trial judge before the guilty plea." State v. Robinson, 224 N.J. Super. 495, 498 (App. Div. 1988). There are only three exceptions to this general waiver rule: (1) grounds preserved under a conditional or retraxit plea under Rule 3:9-3(f); (2) review of "denial[s] of admission into pretrial intervention" programs under Rule 3:28(g); and (3) review of denials of motions to suppress physical evidence due to an unlawful search or seizure under Rule 3:5-7(d). Id.at 499. Defendant entered an unconditional guilty plea, and none of the above exceptions apply. Thus, defendant waived any challenge to the weight of the marijuana.

Affirmed.

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

c. In the case of conviction for the sale or distribution of a [CDS] 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 . . . .