IN THE MATTER OF THE EXPUNGEMENT OF THE CRIMINAL RECORDS OF MICHAEL J. DROBNY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0953-11T2

IN THE MATTER OF THE EXPUNGEMENT

OF THE CRIMINAL RECORDS OF

MICHAEL J. DROBNY.

________________________________________________________________

December 13, 2012

Submitted October 3, 2012 - Decided

Before Judges Grall and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. M-021-11.

Donald F. Burke, attorney for appellant Michael J. Drobny.

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent State of New Jersey (Brian D. Gillet, Assistant Prosecutor, on the brief).

PER CURIAM

Petitioner Michael J. Drobny appeals from the original denial and denial of reconsideration1 of his application to expunge his convictions from an August 1996 arrest. After review of the contentions raised on appeal in light of the facts and applicable law, we affirm.

In 1996, when he was twenty years old, Drobny engaged in a series of narcotics sales to undercover police officers. He entered a plea of guilty to selling less than one ounce of marijuana on August 1, 1996, N.J.S.A. 2C:35-5(a)(1) and (b)(12), and selling one ounce or more of marijuana on August 15, 1996, N.J.S.A. 2C:35-5(a)(1) and (b)(11).2 Drobny was sentenced to probation for three years, which he successfully completed without a violation. He has had no subsequent involvement with the criminal justice system.

On December 28, 2010, petitioner filed a petition for expungement. On appeal, he argues that his convictions should be expunged pursuant to N.J.S.A. 2C:52-5, the Expungement of Records for Youth Drug Offenders. The statute in question reads:

Notwithstanding the provisions of sections 2C:52-2 and 2C:52-3, after a period of not less than one year following conviction, termination of probation or parole or discharge from custody, whichever is later, any person convicted of an offense under chapters 35 or 36 of this title for the possession or use of a controlled dangerous substance, convicted of violating P.L. 1955, c. 277, 3 (C. 2A:170-77.5), or convicted of violating P.L. 1962, c. 113, 1 (C. 2A:170-77.8), and who at the time of the offense was 21 years of age or younger, may apply to the Superior Court in the county wherein the matter was disposed of for the expungement of such person's conviction and all records pertaining thereto. The relief of expungement under this section shall be granted only if said person has not, prior to the time of hearing, violated any of the conditions of his probation or parole, albeit subsequent to discharge from probation or parole, has not been convicted of any previous or subsequent criminal act or any subsequent or previous violationof chapters 35 or 36 of this title or of P.L. 1955, c. 277, 3 (C. 2A:170-77.5) or of P.L. 1962, c. 113, 1 (C. 2A:170-77.8), or who has not had a prior or subsequent criminal matter dismissed because of acceptance into a supervisory treatment or other diversion program.

 
This section shall not apply to any personwho has been convicted of the sale or distribution of a controlled dangerous substance or possession with the intent to sell any controlled dangerous substance except:
 
(1) Marihuana, where the total sold, distributed or possessed with intent to sell was 25 grams or less, or

 
(2) Hashish, where the total amount sold, distributed or possessed with intent to sell was 5 grams or less.

[N.J.S.A. 2C:52-5 (emphasis added).]

Counsel and the judge discussed the meaning of the words, "shall be granted only if said person has not, prior to the time of hearing, violated any of the conditions of his probation or parole, albeit subsequent to discharge from probation or parole, has not been convicted of any previous or subsequent criminal act" and whether petitioner's two convictions would therefore disqualify him from expungement. SeeIn re Ross, 400 N.J. Super.117, 123-24 (App. Div. 2008) (holding that two convictions, even if the offenses were part of a single spree, bar expungement under the general expungement statute, N.J.S.A. 2C:52-2).

Because petitioner indisputably was convicted of the sale of more than twenty-five grams of marijuana, he is not eligible for an expungement of any offense under N.J.S.A. 2C:52-5. Thus, it is not necessary to consider petitioner's statutory argument because it is not relevant to this case.

1 This order misstates the date of the denial of reconsideration. The order was entered without full briefing and the parties agreed to a de novo hearing, which resulted in the July 28, 2011 opinion. Although the subsequent reconsideration motion referred to a July 28 order, we have not been supplied with such an order.

2 The judge, in his opinion, wrote that on August 1, 1996, petitioner sold 24.61 grams of marijuana, and on August 15, 1996, he sold 188.28 grams of marijuana. An ounce is 28.35 grams.