IN THE MATTER OF THE EXPUNGEMENT PETITION OF JOSEPH S HANNAH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF THE EXPUNGEMENT

PETITION OF JOSEPH S. HANNAH.

________________________________________________

December 17, 2013

Argued December 3, 2013 Decided

Before Judges Messano and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 96-10-1020.

Justin Lee Klein argued the cause for appellant Joseph Hannah (Hobbie, Corrigan & Bertucio, P.C., attorneys; Edward C. Bertucio, of counsel; Danielle M. Diodato, on the brief).

Andrew M. Megill, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Joseph D. Coronato, Ocean County Prosecutor, attorney; Mr. Megill, on the brief).

PER CURIAM

Joseph Hannah appeals from the order denying his petition for expungement. The judge determined that, pursuant to N.J.S.A. 2C:52-2a, Hannah was "ineligible . . . because [he] ha[d] more than one indictable conviction" as a result of pleading guilty to "multiple charges," which, although "alleged in a single indictment," involved criminal acts that "did not occur concurrently." We have considered the arguments raised in light of the record and applicable legal standards. We affirm.

Appellant was a practicing dentist when the Ocean County grand jury returned Indictment No. 96-10-1020, charging him in twelve counts with various violations of the Criminal Code. On April 28, 1997, he pled guilty to three counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b, and a single count of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. Each offense was committed against a different victim and at different times, the earliest occurring in July and the latest in November 1995.1 In accordance with the plea bargain, on June 30, 1997, the judge imposed a non-custodial probationary sentence.

On September 21, 2012, appellant filed a verified petition seeking expungement of his three convictions of sexual contact.2 The petition set forth what has been, without dispute, appellant's exemplary conduct since he was convicted, as well as the professional hardships he allegedly continues to endure as a result of those convictions.3

In an oral opinion read on the record, Judge Rochelle Gizinski denied the petition. Quoting In re P.A.F., 176 N.J. 218, 223 (2003), the judge noted that the expungement statute "favors expungement of the criminal records of a first-time offender[,]" and "[e]xceptions . . . are to be construed narrowly." Judge Gizinski stated, "The crux of this case concerns whether petitioner's criminal acts, which took place over approximately a six and a half month period qualify [him] as . . . 'a one-time offender' because he was charged in a single indictment."

The judge rejected appellant's argument that In re Fontana, 146 N.J. Super. 264 (App. Div. 1974), applied, noting that Fontana was decided "before the expungement statute was amended in 1979."4 She observed that N.J.S.A. 2C:52-2a "now only permits an expungement to be granted after [ten] years to a person who . . . 'has not been convicted of any prior or subsequent crime.'" Judge Gizinski further stated that our decision in In re Ross, 400 N.J. Super. 117 (App. Div. 2008), "analyzed the pre[-] and post[-]amendment language" under facts that were "analogous to the present matter." Judge Gizinski rejected appellant's argument that Ross was distinguishable because the convictions in that case arose from two separate indictments.

The judge also cited our recent decision, In re R.Z., 429 N.J. Super. 295 (App. Div. 2013). In that case, which involved convictions for two crimes contained in a single indictment, we said "a petitioner bears the burden to show his or her crimes were committed concurrently, that is, that one crime was not committed 'prior or subsequent[ly]' to the other." Id. at 297, 302 (quoting N.J.S.A. 2C:52-2a).

Judge Gizinski concluded that in this case:

[T]he record evidence is that petitioner's acts . . . took place on different days over a multi-month time period. Undisputed facts regarding the timing of an offense may be gleaned from admission at the plea or sentencing hearing or at trial and concessions . . . in a Pre-Sentence Report.

It's . . . patently obvious that petitioner was not engaging in a single course of conduct when he improperly touched patients on different days over that extensive time period. Petitioner has not and will not be able to meet his burden of proof . . . under the expungement statute.

Before us, appellant essentially reiterates the arguments raised before Judge Gizinski. He contends that because the crimes occurred over a comparatively short period of time, demonstrated a pattern of similar criminal conduct and were disposed of by a single plea agreement resulting in a single judgment of conviction, he is entitled to expungement. We disagree and affirm substantially for the reasons expressed by Judge Gizinski in her comprehensive and thoughtful decision. We add the following brief comments.

We have no doubt that under our holdings in Ross and R.Z., appellant is not entitled to expungement. However, appellant contends Ross was wrongly decided. He notes that the petitioner in P.A.F. "pled guilty to a number of crimes contained in a multi-count indictment," yet the Court concluded he was nonetheless entitled to expungement. P.A.F., supra, 176 N.J. at 219, 224. Similarly, the petitioner in In re J.N.G., 244 N.J. Super. 605, 607 (App. Div. 1990), pled guilty to multiple crimes. Nevertheless, we reversed the denial of his expungement petition. Id. at 611. Since both P.A.F. and J.N.G. were decided after the statutory amendment, petitioner argues that those cases implicitly permit expungement in this case.

We reject the argument. If committed concurrently, the statute permits expungement of a single conviction for multiple crimes. R.Z., supra, 429 N.J. Super. at 303. However, "if two crimes are committed on separate occasions, they are precluded from expungement regardless of whether the two crimes carry a single sentencing date and therefore a single date of conviction." Ross, supra, 400 N.J. Super. at 122. And, while P.A.F. and J.N.G. both involved expungement petitions that followed convictions for multiple crimes, neither case stated whether the crimes were committed concurrently or on separate occasions. We reject appellant's argument that we should abandon our holding in Ross based upon opinions that did not squarely address the issue.

Affirmed.

1 Other counts in the indictment alleged similar conduct continued through February 1996.

2 Convictions for endangering the welfare of a child, N.J.S.A. 2c:24-4a, may not be expunged. See N.J.S.A. 2C:52-2b.

3 Although he continues to practice dentistry without restrictions, appellant stated that he is "unable to participate with any New Jersey insurance carriers," and, thus, "can only accept patients who self-pay for their treatment . . . ."

4 When Fontana was decided, the statute then in effect, N.J.S.A. 2A:164-28, provided for expungement after ten years "[i]n all cases wherein a criminal conviction has been entered against any person . . . and no subsequent conviction has been entered against such person . . . ." Fontana, supra, 146 N.J. Super. at 266 (emphasis added). The statute now permits expungement of an indictable conviction only if the petitioner "has not been convicted of any prior or subsequent crime . . . ." N.J.S.A. 2C:52-2a.