IN THE MATTER OF THE EXPUNGEMENT OF THE CRIMINAL RECORDS OF T.S.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1528-11T1

IN THE MATTER OF THE

EXPUNGEMENT OF THE

CRIMINAL RECORDS OF T.S.

__________________________

Telephonically argued November 7, 2012 Decided December 4, 2012

Before Judges Parrillo and Maven.

On appeal from Superior Court of New Jersey,

Law Division, Ocean County, Indictment No. 02-05-0595.

Brenden T. Shur argued the cause for appellant T.S. (Law Offices of John J. Zarych, attorneys; Mr. Shur, of counsel and on the brief).

Andrew M. Megill argued the cause for respondent State of New Jersey (Marlene Lynch Ford, Ocean County Prosecutor, attorney; Mr. Megill, of counsel and on the brief).

PER CURIAM

Petitioner T.S. appeals from an order of the Law Division denying his petition for expungement of a 2002 judgment of conviction for third degree distribution of a controlled dangerous substance (CDS), cocaine, within 1000 feet of a school zone, contrary to N.J.S.A. 2C:35-7. In denying the application, the trial court found that because of the relatively serious and ongoing nature of his criminal enterprise at the time of arrest, expungement would not be consistent with the public interest. Having considered the arguments raised in light of the record and applicable legal principles, we reject the petitioner's claims and affirm.

These are the relevant facts adduced from the record. In December 2001, the Ocean County Narcotic Strike Force prepared an undercover operation investigating T.S.'s sale of narcotics. On three separate occasions, an undercover officer purchased various quantities of cocaine from the then twenty-one-year-old petitioner. On December 12, 2001, T.S. and an officer arranged to meet in a Toys-R-Us parking lot, where T.S. sold him 0.8 grams of cocaine. At the same location, T.S. also sold the officer one gram of cocaine on December 19, 2001. T.S. later agreed to sell ten grams of cocaine to the officer on December 27, 2001, on which date T.S. received $400 from the officer and provided him with 8.8 grams of cocaine. This incident occurred within 1000 feet of Toms River High School North. Subsequently, police executed a search warrant on T.S.'s car and home, where they discovered another 26.5 grams of cocaine, as well as a scale containing cocaine residue, and illegal steroids.

On May 14, 2002, an Ocean County Grand Jury returned a nineteen-count indictment against T.S., charging him with six counts of third degree possession of CDS, N.J.S.A. 2C:35-10(a)(1); six counts of third degree distribution of CDS within 1000 feet of a school, N.J.S.A. 2C:35-7; six counts of third degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a); and one count of second degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a). Ultimately, he pled guilty to one count of third degree distribution of CDS within 1000 feet of a school zone, and the remaining charges were dismissed. T.S. received a four-year term of imprisonment with a parole ineligibility period of ten months, as well as various penalties and fines. T.S. was terminated from parole on June 2, 2003.

In 2011, T.S. sought an expungement of his criminal record under the "early pathways" provision, pursuant to N.J.S.A. 2C:52-2. In his petition, T.S. stated that his conviction was a youthful indiscretion and that he wants to "continue with his life." In support of his claim, he asserted he is now married, is a homeowner, and has been gainfully employed for the last five years. He is a contract worker, specifically a Communications Technician, with Scholes Electric and Communications. T.S. argued that his criminal record has impeded his career advancement. During the motion hearing, he testified that his work hours were limited due to his inability to perform services on a full-time basis with two Scholes' clients, Morgan Stanley and Goldman Sachs, which thereby has reduced his earning capacity.1 Although Scholes did not mandate a background check for contract workers, Morgan Stanley and Goldman Sachs required him to be screened to work on their sites. If he attempted to apply now with the conviction, he probably would be rejected.

In the years following his conviction, T.S. has not been charged with any additional criminal offenses. He stated that he has refrained from illegal drug use, as well as "disassociated himself from any activities that related to [his] conviction."

In opposing the expungement petition, the State focused on the nature of T.S.'s CDS offenses, including the quantity and weight of CDS sold and discovered, as evidenced by the number of counts in the indictment.2 Considering the serious nature of his crime, the State argued that T.S. has failed to meet his burden of proving that expungement was in the public interest.

The Honorable Ronald E. Hoffman, J.S.C., heard oral argument on October 17, 2011. T.S. was the only person to testify. In denying relief, the trial court determined that T.S. did not sufficiently prove that his circumstances necessitated an "early pathways" expungement. Evaluating the nature of his offense, the motion judge reasoned that T.S. had been a drug dealer for "an ongoing period of time" and possessed drugs and other drug paraphernalia at the time of arrest. The motion judge specifically noted that T.S. sold to undercover officers three separate times and was initially indicted on nineteen counts, but pled guilty to only one count. Next, in assessing T.S.'s character and conduct since his conviction, the judge acknowledged T.S.'s positive life advancement and efforts to be a "law-abiding" citizen. He explained, however, that these requests required "something a little unusual, a little something out of the ordinary in order to qualify for that public interest exception." Ultimately, the trial court denied T.S.'s application.

T.S. raises two issues on appeal. First, that the trial court erred in failing to address which party bore the burden of proof in establishing the essential elements for an "early pathways" expungement. Second, that the court erred in finding his expungement was not in the public interest.

With respect to the burden of proof, it is clear that the petitioner has the burden to satisfy the expungement statute requirements. In re D.H., 204 N.J. 7, 18 (2010). Indeed, more recently, the Supreme Court held that "applicants must . . . demonstrate that expungement is in the public interest by a preponderance of the evidence." In re Kollman, 210 N.J. 557, 573 (2012). Nothing in the record indicates that the motion judge failed to follow this basic principle.

As to the substantive issue, we begin with a review of the expungement statute. N.J.S.A. 2C:52-2, which originally allowed for the grant of expungements after ten years, was amended in 2010 to add an "early pathways" provision. A court can now grant an expungement when:

at least five years has expired from the date of . . . 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.

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

Moreover, the statute was amended to add a provision that allows certain drug offenses to be expunged and reads:

Any controlled dangerous substance [conviction] provided that the conviction is of the third or fourth degree, where the court finds that expungement is consistent with the public interest, giving due consideration to the nature of the offense and the petitioner's character and conduct since conviction.

[N.J.S.A. 2C:52-2(c)(3) (emphasis added).]

Most recently, the Supreme Court in In re Kollman, supra, had occasion to interpret the "early pathways" amendment to the expungement statute. Kollman was charged with three counts of CDS distribution, but pled guilty to one count. Id. at 564. He successfully completed forty-five days in jail and eighteen months of probation. Ibid. Nine years later, he applied for expungement, offering proof that he was a college graduate and worked full-time while in school. Ibid. In its evaluation, the Court placed considerable weight on the fact that he was active in many community service projects, including hosting toy drives for underprivileged families and serving on the scholarship committee board for the Boys Scouts of America. Id. at 564-65. It was clear to the Court that Kollman desired to have an impact on his community, and the conviction impeded his continued efforts to coach the wrestling club, teach boating safety class, and work with the Big Brothers Big Sisters program. Id. at 565, 579. The Court noted that his community service "should have been weighed alongside the substantial evidence about [his] character and conduct since his conviction," yet "received little attention" in the trial court's overall evaluation. Id. at 579. Ultimately in remanding for further consideration, the Court concluded that Kollman's petition "weigh[ed] heavily in favor of expungement." Id. at 580.

In reviewing the trial court's decision at issue, we give due deference to the judge's findings so long as they were not "clearly unreasonable in the light of the accompanying and surrounding circumstances . . . ." Smith v. Smith, 17 N.J. Super. 128, 132-33, (App. Div. 1951), certif. denied, 9 N.J. 178 (1952)). The abuse of discretion standard is generally applied to these types of cases. In re LoBasso, 423 N.J. Super. 475, 492 (App. Div. 2012). When examining a trial court's exercise of discretion, it must be determined whether the court correctly applied the law. Ibid.; see also Paradise Enters. v. Sapir, 356 N.J. Super. 96, 102 (App. Div. 2002).

The "early pathways" law requires a finding "that expungement is in the public interest." N.J.S.A. 2C:52-2(a)(2). Public interest is determined using fact-specific analysis considering (1) the "nature of the offense[;]" and (2) "applicant's character and conduct since conviction." Ibid. We have determined that appropriate examination of the first prong, i.e., nature of the offense, requires a court to look at the facts "surrounding the grade and definition of the offense, and the facts relating directly to the elements of the offense." LoBasso, supra, 423 N.J. Super. at 494; see also Kollman, supra, 210 N.J. at 572.

Upon careful review of the record, we conclude that the trial court extensively examined T.S.'s circumstances and made an appropriate determination that he sold drugs directly to an undercover officer on numerous occasions, and that police also uncovered more than twenty-six grams of cocaine in his possession. T.S.'s assertion that he sold drugs to support his self-reported addiction was not supported by the record. Rather, the record is devoid of any evidence indicating prior CDS arrests or convictions, or attempts at substance abuse treatment or rehabilitation. Furthermore, the Presentence Report did not recommend a substance abuse or TASC (Treatment Assessment Services for the Courts) evaluation. Neither drug counseling nor treatment was included as a condition of his probation.3 In fact, documentation produced by T.S. indicates he began counseling after his arrest. We conclude that the sheer gravity of the offense confirms the trial court's finding that T.S. was a drug dealer and serious offender at the time of his arrest.

To appropriately assess the second prong, the court must evaluate the petitioner's character and conduct since conviction. N.J.S.A. 2C:52-2(a)(2). LoBasso espoused factors the court should consider, including, but not limited to:

whether a petitioner has obtained job training or education, complied with other legal obligations (such as child support and motor vehicle fines), . . . maintained family and community ties that promote law-abiding behavior, . . . severed relationships with persons in the criminal milieu, . . . [as well as] performance while incarcerated or while on probation . . . [, and] the number of offense-free years after conviction . . . .

[Supra, 423 N.J. Super. at 491-92.]

T.S. contends that the trial court did not properly consider the relevant facts of his case in light of the LoBasso factors. T.S. reiterates that he is married, owns a home, is gainfully employed, and has remained law-abiding, all of which evidences his positive character and conduct as an "exemplary citizen." He asserts that his circumstances are closely aligned with the petitioner in Kollman.

However, the petitioner in this case is not similarly situated. While we acknowledge and appreciate that T.S. has led a crime-free and successful life for the past nine years, such conduct, standing alone, is not enough to satisfy the underlying statutory requirements for an "early pathways" expungement. A petitioner must demonstrate that an expungement of his criminal record serves the public interest. The Court's analysis in Kollman places emphasis on a petitioner's efforts to make a demonstrable impact on his community through, e.g., service projects and activities. In other words, courts should evaluate any evidence of petitioner's "unique" circumstances, i.e. community service efforts as an additional factor in assessing his character and conduct since conviction. We echo the motion judge's finding that serving the public interest means more than being "law-abiding."

Unlike Kollman, T.S. has not presented any evidence of compelling circumstances, such as, involvement in community service. The motion judge properly weighed the positive evidence presented by T.S., yet concluded that the petitioner's character and conduct since conviction did not outweigh the serious nature of his offense. We find no abuse of discretion in that decision.

Contrary to petitioner's argument, in reaching this conclusion the motion judge did not impose a heightened standard of exceptional conduct. Clearly, "applicants must satisfy the balancing test the Legislature outlined to establish that expungement is in the public interest -- no more and no less. Petitioners are not required to demonstrate that they are 'exceptional' or 'extraordinary' applicants." Kollman, supra, 201 N.J. at 574 (emphasis added). Petitioner's argument that he was held to such a higher standard is not supported by the record and, as such, is "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We add only the following remarks.

As LoBasso explains, the words "extraordinary" and "exceptional" merely refer to the uniqueness of an applicant's circumstances, and not the threshold of proof. Supra, 423 N.J. Super. at 496. LoBasso specifically states that

[e]arly pathway relief is "exceptional" in the sense that the 2010 amendment creates an exception to the general requirement that a petitioner wait ten years for expungement. Moreover, the relief is "extraordinary," in the sense that a petitioner must show something more than that he or she has been offense-free for over five years.

[Ibid.]

The Legislature intended for courts to provide "early pathways" relief in cases where a petitioner has demonstrated a "compelling case[.]" Id. at 491 (quoting A Strategy for Safe Streets and Neighborhoods, Executive Summary, at 24 (2007)). As such, relief is granted where a petitioner sufficiently proves his expungement will better serve both himself and the public at-large.

Lastly, it is important to note that T.S. may still petition under the original statutory ten-year provision. At the motion hearing and on appeal, T.S. notes that, under the ten-year provision, he "would still have to show [his petition is] in the interest of justice." In assessing the statutory language, we find that the public interest determination applies only to "early pathways" relief. The ten-year expungement process does not require the trial court to evaluate the public interest component. N.J.S.A. 2C:52-2(a) provides that after ten years, a person may petition for expungement by: (1) paying all fines; (2) satisfactorily completing probation or parole; (3)

petitioning the court pursuant to N.J.S.A. 2C:52-7; and (4)

providing a petitioner's statement pursuant to N.J.S.A. 2C:52-8.4

A

1 T.S. supplied tax returns for 2008, 2009, and 2010, which indicate his household earnings of $128,000, $172,000 and $134,000, respectively.

2 The State also attached several traffic infractions but did not address them any further than stating the following in its trial court brief: "The State relies on the attached copy of the Certified Driver Abstract and ATS printouts for a summary of petitioner's motor vehicle violations." The trial court judge never addressed the traffic infractions. Therefore, we decline to address any issues that an appellant has failed to properly raise before the trial court. See State v. Robinson, 200 N.J. 1, 20 (2009).

3 We gain these facts from the Presentence Report included in the record. We also reiterate Judge Ostrer's comment in LoBasso, supra, 423 N.J. Super. at 483, suggesting that "trial courts routinely require the submission of such documents, if available, to assist the court in assessing the 'nature of the offense,' N.J.S.A. 2C:52-2(b), as required in connection with an early pathway expungement petition."

4 N.J.S.A. 2C:52-14 outlines the reasons for a denial of an expungement after ten years. "Public interest" is not a listed factor.