IN RE RONALD C KOLLMAN, JR PETITION FOR EXPUNGEMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5079-09T4

IN RE RONALD C. KOLLMAN, JR.,

PETITION FOR EXPUNGEMENT.

_________________________________

March 9, 2011

Argued January 20, 2011 - Decided

Before Judges Fisher and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 00-08-1706.

Robert D. Herman argued the cause for appellant Ronald C. Kollman, Jr.

Julie H. Horowitz, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Theodore F. L. Housel, Atlantic County Prosecutor, attorney; Ms. Horowitz, on the brief).

PER CURIAM

Petitioner appeals the June 18, 2010 order denying his application for expungement of his prior criminal conviction. We affirm.

Petitioner was indicted on twelve counts of narcotics-related offenses arising out of an undercover operation conducted by the Atlantic County Prosecutor's Office. As part of a negotiated plea, he pled guilty to one count of distribution of a controlled dangerous substance (Ecstasy), N.J.S.A. 2C:35-5, and in exchange the State agreed to dismiss the remaining eleven counts contained in the indictment. In addition, the State agreed not to pursue charges arising out of events that occurred at another nightclub on two separate occasions and to recommend probation. The court sentenced him, in accordance with the agreement, to a three-year probationary term, conditioned upon completion of a forty-five-day custodial sentence to be served at the county jail. The court also imposed the appropriate fines and penalties. He successfully completed all of the terms and conditions of his probation on September 13, 2002.

On March 18, 2010, petitioner sought to expunge his conviction. He petitioned the Law Division pursuant to an amendment to the expungement statute permitting certain persons to petition for expungement less than ten years following a conviction, payment of fine, and satisfactory completion of probation or release from incarceration. See N.J.S.A. 2C:52-2a.

The court conducted oral argument, during which petitioner's attorney argued that petitioner was only twenty-three years old when he committed the offense, admitted his guilt at the time of his arrest and, since that time, had completed his education, volunteered in the community, maintained gainful employment and had become a model citizen. Counsel argued further that the impact of the conviction has prevented petitioner from pursuing further activities, including serving as a wrestling coach, participating with youth in the Big Brothers and Big Sisters Program, and teaching boating safety.

The court was satisfied that petitioner met the first two requirements for relief: (1) at least five years had passed since he had completed probation; and (2) he had not been convicted of any other offense since the date of his conviction. N.J.S.A. 2C:52-2a(2). Noting that the State opposed the motion, the court directed the State to respond to the third requirement for relief, namely, whether expungement was in the public interest. Ibid.

The State argued that petitioner had already received favorable treatment, noting that he received the benefit of having eleven counts dismissed, which included a second-degree offense for which he would have faced incarceration. Instead, he pled guilty to a third-degree offense and received probation. The State noted further that petitioner was caught selling Ecstasy in a club on three separate occasions but was only required to plead guilty to one sale.

The court reserved decision and issued a written opinion denying the petition. In finding that expungement was not in the public interest, the court stated:

Petitioner's activities and behavior since his discharge from probationary supervision are consistent with those of a good citizen who has benefited from the rehabilitative aspects of community supervision. The [c]ourt has also considered the standard of liberality that should be afforded to [p]etitioners seeking expungement. In re Expungement Application of P.A.F., 176 N.J. 218 (2003). However, this [c]ourt must consider more than these factors. The [c]ourt must also consider the nature of the offense and the public interest. Due to the relatively serious nature of the offense, this [c]ourt cannot grant the current petition for expungement.

Ecstasy is a designer drug that the [p]etitioner sold, on more than one occasion, purely for monetary gain. These were not sales out of financial desperation or unrelenting habit. At the time of the sales, he was gainfully employed as a manager at a water sports store. Further, it is in the public interest not to expunge the [p]etitioner's conviction at this time. The community has a right to be aware of the [p]etitioner's conviction for drug distribution. The public is not benefited by remitting the adverse consequences stemming from a publicly accessible criminal conviction. Those who would consider the [p]etitioner's application to work with children or adolescents have the need to know that their would-be mentor has a conviction for drug distribution. Such information is necessary for a complete picture of the [p]etitioner and his entire background. This information is critical for decision-makers charged with the protection of youth. As such, at least for the time being, it is not in the public's interest to expunge this conviction, despite the [p]etitioner's steps toward repairing his good name and reputation.

The present appeal followed.

On appeal, petitioner raises the following points for our consideration:

[POINT I]

WHERE PETITIONER HAS MET THE BASIC CRITERIA FOR EXPUNGEMENT PURSUANT TO N.J.S.A. 2C:52-2 FOR A CONVICTION UNDER N.J.S.A. 2C:35-5, DISTRIBUTION OF C.D.S., THE BURDEN OF PERSUASION SHIFTS TO THE OBJECTING PARTY, HERE THE STATE, PURSUANT TO N.J.S.A. 2C:52-14B[,] TO ESTABLISH THAT AN EXPUNGEMENT IS NOT IN THE PUBLIC INTEREST AND THAT AN EXPUNGEMENT IS NOT CONSISTENT WITH THE PUBLIC INTEREST.

[POINT II]

WHERE THE EXPUNGEMENT STATUTE IS SILENT AS TO WHAT IS MEANT BY "IN THE PUBLIC INTEREST" AND ["]CONSISTENT WITH THE PUBLIC INTEREST," WHEN READ WITHIN THE CONTEXT OF THE EXPUNGEMENT STATUTES AND IN CONJUNCTION WITH PRIOR CASE LAW, THE STATUTE REQUIRES A RISK-BENEFIT BALANCING TEST.

[POINT III]

PETITIONER PRESENTED SUFFICIENT EVIDENCE TO MEET AND EXCEED THE BURDEN OF PERSUASION, EVEN IF IT WERE NOT PETITIONER'S BURDEN[] TO ESTABLISH THAT PETITIONER IS ENTITLED TO EXPUNGEMENT.

We have considered the arguments advanced in light of the record and applicable legal principles and are satisfied that Judge DeLury did not abuse his discretion in denying the petition. We affirm substantially for the reasons expressed by Judge DeLury in his June 8, 2010 written opinion. We add the following brief comments.

N.J.S.A. 2C:52-2(a) was amended, effective March 13, 2010, to provide:

Notwithstanding the provisions of [N.J.S.A.2C:52-2(a),] the preceding paragraph, a petition may be filed and presented, and the court may grant an expungement pursuant to this section, although less than 10 years has expired in accordance with the requirements of the preceding paragraph where the court finds:

. . . .

(2) at least five years has expired from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later; the person has not been convicted of a crime, disorderly persons offense, or petty disorderly persons offense since the time of the conviction; and the court finds in its discretion that expungement is in the public interest, giving due consideration to the nature of the offense, and the applicant's character and conduct since conviction.

We employ an abuse-of-discretion standard in our review of Judge DeLury's determination that granting petitioner's petition was not in the pubic interest. As we recently reiterated in Parish v. Parish:

[T]here are two conditions which must exist to warrant an appellate court in nullifying a ruling of the trial court made in the exercise of a conceded discretion. The first is that the judicial action must have been clearly unreasonable in the light of the accompanying and surrounding circumstances, and the second condition is that the ruling must have resulted prejudicially to the rights of the party complaining.

[ 412 N.J. Super. 39, 73 (App. Div. 2010) (quoting Smith v. Smith, 17 N.J. Super. 128, 131-33 (App. Div. 1951), certif. denied, 9 N.J. 178 (1952)).]

Unquestionably, the record demonstrates that defendant, both during and since being discharged from probation, has led an exemplary and law-abiding life. Moreover, it is also evident that defendant has earned widespread respect from prominent citizens within his community. Nonetheless, when those facts are measured against the trial judge's reasons for denying the petition, we cannot conclude that the judge's denial of the petition reflected a clear abuse of discretion. Judge DeLury specifically found:

[A]fter carefully weighing the nature of the offenses against the [p]etitioner's character and conduct since his conviction, I find in the totality of the circumstances that the State has demonstrated the serious and aggravating nature of the offense that clearly outweighs the positive aspects of the [p]etitioner's character and conduct since conviction. As such, I conclude that the requested expungement is not consistent with the public interest.

As a reviewing court, our function is not "to decide whether the trial court took the wisest course, or even the better course, since to do so would merely be to substitute our judgment for that of the lower court." Gittleman v. Cent. Jersey Bank & Trust Co., 103 N.J. Super. 175, 179 (App. Div. 1967), rev'd on other grounds, 52 N.J. 503 (1968). Measured against that standard, we find no abuse of discretion in the denial of the petition. The denial was reached after consideration of factors relevant to the decision and reflects the exercise of principled discretion.

Finally, petitioner questions whether the burden of proof in expungement cases has shifted from the State to the petitioner in light of the recent amendment to N.J.S.A. 2C:52-2. During oral argument, Judge DeLury acknowledged that petitioner satisfied the first two elements for relief, "the passage of at least five years and that [petitioner] has not incurred any other petty or greater offenses in that time." N.J.S.A. 2C:52-2(a)(2). Therefore, the sole issue for resolution was whether expungement was in the public interest. To reach that determination, the judge, relying upon State v. XYZ Corp., 119 N.J. 416, 422-23 (1990), assigned to the State the burden of demonstrating "that expungement should not be granted." Then, citing In re Opinion No. 26 of the Committee on the Unauthorized Practice of Law, 139 N.J. 323, 327 (1995), he applied "a balancing test wherein the risks and benefits to the public are weighed." Against this analytical framework, the judge concluded that "in the totality of the circumstances that the State has demonstrated the serious and aggravating nature of the offense that clearly outweighs the positive aspects of the [p]etitioner's character and conduct since conviction."

We are in complete agreement with Judge DeLury's approach and determine that the recent amendment did not in any way alter the State's burden to prove, by a preponderance of the evidence, that expungement was not in the public interest. See In re D.H., 204 N.J. 7, 18 (2010). N.J.S.A. 2C:1-13(d) provides in pertinent part:

When the application of the code depends upon the finding of a fact which is not an element of an offense, unless the code otherwise provides: (1) The burden of proving the fact is on the prosecution or defendant, depending on whose interest or contention will be furthered if the finding should be made[.]

Here, the finding that expungement is or is not in the public interest implicates the public interest. It is the prosecutor who is the public's representative. "The prosecutor comes into court as the State's attorney [and is] a constitutional officer representing the sovereign power of the people of the State by whose authority and in whose name, under the constitution, all prosecutions must be conducted." State v. DiPaglia, 64 N.J. 288, 297 (1974). Therefore, the trial court properly placed the burden upon the State to demonstrate that expungement of petitioner's conviction is not in the public interest.

Affirmed.