STATE OF NEW JERSEY v. OLIVIA HOWARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2114-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OLIVIA HOWARD,

Defendant-Appellant.

_____________________________

December 26, 2012

Argued December 11, 2012 - Decided

Before Judges Reisner and Harris.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-04-0391.

Alan Dexter Bowman argued the cause for appellant.

Gary A. Thomas, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Thomas, of counsel and on the brief).

PER CURIAM

Defendant Olivia Howard appeals from an October 21, 2011 order denying reconsideration of an April 21, 2011 order, which in turn denied her petition for expungement of her 1991 conviction for third-degree death by auto, N.J.S.A. 2C:11-5. For the reasons that follow, we affirm.

I

So that the factual record is clear, we quote the decision of our Supreme Court, which in deciding to suspend Howard's law license for three months, accepted the following facts describing the crime of which she was convicted:

Respondent was admitted to the New Jersey bar in 1981. Her husband, Frank Howard, also a member of the bar, was a police officer in Newark who maintained a part-time legal practice. The two shared "staff, space, resources and income" at their law office in East Orange, New Jersey.

. . . On the afternoon of July 3, 1989, Olivia and Frank Howard met to discuss some of their financial difficulties. With her husband in the passenger seat, respondent drove to a construction site where she parked her car so they could talk. An argument ensued, leading Mr. Howard to put the gear shift into reverse, exit the vehicle and walk away. When respondent backed up the car, the passenger door "flew open" and became caught in a fence surrounding the construction site. The top hinge of the car door broke, causing the door to drag as respondent drove.

Respondent then put the car in forward and drove alongside her husband, following his pace. As she drove, she pleaded with him to assist her in securing the door. He ignored her pleas and continued walking. After following Mr. Howard the wrong way down two one-way streets, respondent finally pulled into the driveway of a health clinic and came to a stop when her husband approached the front of the car. She exited the car and once again sought his assistance. The two were unable to resolve their dispute at that time. Respondent then "got back into the car . . . hit the gas . . . and reached for the car door at the same time . . . ." When she felt something under the car, she "slammed on the brakes with both of [her] feet . . . ." Mr. Howard was wedged underneath the car. He died later that day as a result of his injuries.

A Bergen County grand jury charged respondent with murder. At trial, respondent testified that she never intended to strike Frank Howard with her car. She maintained that her husband stepped in front of the car as she was accelerating, and that she did not see him because she was reaching over in an attempt to close the damaged passenger door. A jury acquitted respondent of murder, but found her guilty of the lesser included offense of death by auto in violation of N.J.S.A. 2C:11-5. [] The trial judge sentenced respondent to five years probation, 500 hours of community service, $17,500 in fines and penalties, and revoked her driving privileges for two years.

[In re Howard, 143 N.J. 526, 528-29 (1996)(footnote omitted).]

Howard paid most of the fines and penalties, but failed to pay the last $2000, which the Probation Department reduced to a judgment. In her expungement application, Howard contended that she "forgot" about the judgment and did not pay it off until 2003, when she sold a piece of property on which the judgment was a lien. The criminal case was formally discharged on January 2, 2003.

In an unrelated matter, Howard was disbarred by consent in 2000, In re Howard, 163 N.J. 92 (2000). The reasons for Howard's consent to disbarment are in dispute on this record. However, there is no dispute that at the time Howard consented to disbarment, the Office of Attorney Ethics (OAE) had investigated a complaint against her and had determined that she improperly disbursed $200,000 from her attorney trust account.

In connection with the OAE investigation, the New Jersey Lawyers' Fund for Client Protection (Fund) filed a lawsuit against Howard seeking to recoup the $200,000. A dispute arose over whether that lawsuit had been settled. In 2010, we held that Howard had not authorized her attorney to settle the case, and we remanded the matter to the Law Division "for trial." N.J. Lawyers' Fund for Client Protection v. Howard, No. A-3461-08 (App. Div. April 14, 2010), certif. denied, 203 N.J. 92 (2010).1

In 2009, prior to the ten-year period then required by the expungement statute, N.J.S.A. 2C:52-2, Howard filed her first expungement petition. By order dated December 7, 2009, Judge Sherry Hutchins-Henderson denied the petition, concluding in a written opinion that the ten-year period began to run on January 2, 2003, and the petition was therefore filed prematurely.

After the statute was amended to permit expungement sooner than ten years in certain circumstances, N.J.S.A. 2C:52-2a(1), -2a(2), Howard filed a second petition in July 2010. That petition was also denied on April 21, 2011, in light of the seriousness of the underlying offense and the lack of compelling circumstances.2

On May 10, 2011, Howard filed a motion for reconsideration of the April 21 order. Judge Ravin denied that motion, for reasons he stated in a nine-page written opinion dated October 21, 2011. Relying on the principles set forth in Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996), Judge Ravin found that Howard's petition did not satisfy the standard for reconsideration, but merely re-presented "the same facts, arguments, and law . . . that were already duly considered."

However, Judge Ravin also re-affirmed his April decision, considering the gravity of the offense, "a third-degree violent crime," as well as "other facts concerning Petitioner's character that would not justify the public interest exception" warranting expungement sooner than ten years. The judge noted that Howard was still under investigation by the Fund "for the alleged misappropriation of $200,000." He also considered her six-year delay in paying off her fines, observing that she was still practicing law in 1996 when the $2000 balance was converted to a judgment. The judge found "incredible" Howard's assertion that she "forgot" to pay the money. Last, the judge noted that Howard was "not without recourse in her expungement matter" because she would be able to apply for expungement in the ordinary course on or after January 2, 2013.

II

In pertinent part, the expungement statute permits the filing of a petition "after the expiration of a period of 10 years from the date of [the] conviction, payment of fine, satisfactory completion of probation . . . whichever is later." N.J.S.A. 2C:52-2a. However, the statute permits the filing of a petition before the ten years expires in these circumstances:

(1) less than 10 years has expired from the satisfaction of a fine, but the 10-year time requirement is otherwise satisfied, and the court finds that the person substantially complied with any payment plan ordered pursuant to N.J.S.A. 2C:46-1 et seq., or could not do so due to compelling circumstances affecting his ability to satisfy the fine; or

(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.

[N.J.S.A. 2C:52-2a(1), (2).]

"In essence, expungement under the new 'public-interest' prong initially requires three things: the passage of five years; no additional convictions; and a finding that expungement is in the public interest." In re Kollman, 210 N.J. 557, 571 (2012). A defendant contending that her conviction warrants expungement in the "public interest" has the burden of proving that claim. Id. at 563. The public interest test requires consideration of three factors: "the nature of the offense, and the applicant's character and conduct since conviction." Id. at 574. In exercising its discretion, the trial court may consider the details of the crime, "the applicant's performance while . . . on probation," and whether the petitioner "has complied with other legal obligations" since the conviction. Id. at 576 (quoting In re LoBasso, 423 N.J. Super. 475, 492 (App. Div. 2012)). In reviewing the trial judge's decision, "a reviewing court should not substitute its judgment if the trial court's ruling was within 'a range of acceptable decisions.'" Id. at 577 (quoting Parish v. Parish, 412 N.J. Super 39, 73 (App. Div. 2010)).

On this appeal, Howard argues that the crime of which she was convicted related to an auto accident not an intentional act of violence, she is almost seventy years old, and she has lived a law abiding life since the accident. She also contends that her failure to pay off her court fines was a mere oversight, and the trial court should not have considered the Fund's complaint. We are not persuaded.

Reviewing Judge Ravin's decision in light of the applicable legal standards, we cannot find that he abused his discretion in denying the expungement petition or in denying the reconsideration motion. We find that his 2011 decision appropriately considered the factors that the Court would later outline in Kollman. In particular, Howard did not satisfactorily complete probation for twelve years; nor did she offer a credible reason for failing to pay her fines in a timely manner. More significantly, she was the subject of a serious charge concerning her ethics as an attorney, after which she voluntarily agreed to disbarment, and the alleged misappropriation of $200,000 is the subject of ongoing litigation with the Fund.

Affirmed.

1 The Superior Court's ACMS system lists the Fund case as open, and at the October 17, 2011 oral argument on the expungement reconsideration motion, Howard's counsel advised the judge that "the client fund matter has not even gone back to trial yet." Following oral argument of this appeal, Howard's counsel advised us that the case is now scheduled for trial on February 4, 2013.

2 We glean this information from Judge Michael L. Ravin's written opinion denying reconsideration. Neither party has provided us with the April 21, 2011 order or with the judge's statement of reasons for that order.