IN THE MATTER OF THE APPLICATION FOR EXPUNGEMENT OF THE CRIMINAL RECORDS OF C.A.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4092-11T4

IN THE MATTER OF THE APPLICATION

FOR EXPUNGEMENT OF THE CRIMINAL

RECORDS OF C.A.D.

___________________________________

July 18, 2013

Argued February 27, 2013 - Decided

Before Judges Sapp-Peterson and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. M-484-11.

Daniel B. Kelley argued the cause for appellant C.A.D.

Nancy A. Hulett, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Brian D. Gillet, Assistant Prosecutor, on the brief; Matthew P. Tallia, of counsel and on the brief).

PER CURIAM

Petitioner C.A.D. appeals from a March 22, 2012 Law Division order that denied his petition for expungement of his two convictions for fourth-degree maintaining a nuisance, N.J.S.A. 2C:33-12. The expungement statute authorizes the expungement of a criminal conviction of a person who "has been convicted of a crime under the laws of this State and who has not been convicted of any prior or subsequent crime[.]" N.J.S.A. 2C:52-2a. The judge who denied the expungement petition concluded that because petitioner had been convicted of two separate offenses, the statutory language precluded the expungement of those offenses. Having considered petitioner's arguments in light of the record, we affirm.

According to a transcript of sworn statements submitted by law enforcement authorities to obtain a search warrant, and to a pre-trial intervention form,1 petitioner owned and operated two massage parlors, one in Bergen County and one in Middlesex County, that were fronts for prostitution. When police raided the Bergen County parlor, they interviewed six occupants, five of whom were employees of petitioner. The employees admitted that they routinely performed sexual acts on patrons in exchange for a fee. At least two of the employees, who also worked at the Middlesex County massage parlor, told police that petitioner had instructed them to provide customers with certain sexual favors. One claimed that the previous night petitioner had $25,000 in cash. The employees were arrested.

The police arrested petitioner on May 18, 2002. On August 14, 2002, a Middlesex County grand jury charged petitioner in a five-count indictment with third-degree conspiracy to commit the crimes of promoting prostitution and maintaining a nuisance, a house of prostitution, N.J.S.A. 2C:5-2, 2C:34-1 and 2C:33-12c (count one); third-degree promoting prostitution, N.J.S.A. 2C:34-1b(2) (count two); fourth-degree maintaining a nuisance, N.J.S.A. 2C:33-12c (count three); third-degree wiretap law violations, N.J.S.A. 2A:156A-3 (count four); and fourth-degree peering, N.J.S.A. 2C:18-3c (count five).

Two months later, on October 18, 2002, a Bergen County grand jury charged petitioner in a four-count indictment with third-degree wiretap law violations, N.J.S.A. 2A:156A-3 (first count); third-degree financial facilitation of criminal activity, N.J.S.A. 2C:21-25c (second count); fourth-degree maintaining a nuisance, a house of prostitution, N.J.S.A. 2C:33-12c (third count); and third-degree promoting prostitution, N.J.S.A. 2C:34-1b (fourth count).

Petitioner applied for pre-trial intervention in Middlesex County. The probation officer who authored the pre-trial intervention report recommended that petitioner's application be rejected because he had owned and operated a criminal business over an extended period of time, and that his offenses were planned and organized.

Petitioner pled guilty to the third count of the Middlesex County indictment on January 6, 2003; and to the third count of the Bergen County indictment, on February 10, 2003. He was sentenced to five years' probation on the third count of the first indictment on March 24, 2003; and to five years' probation on the third count of the second indictment on May 6, 2003.

Petitioner served his probationary sentences without incident and has since been arrested for no other crimes. On August 15, 2011, he filed his expungement petition in Middlesex County Superior Court. In the petition, he sought to expunge both the Bergen and Middlesex County convictions "pursuant to the 'one night spree' exception[.]" Petitioner argued that "a series of unlawful actions committed in close temporal proximity to one another and the concomitant convictions therefore constitute a single event for expungement purposes." The judge who heard the petition rejected petitioner's "crime spree" argument, finding instead that petitioner had engaged in an ongoing criminal enterprise "for a long period of time[.]"

In this appeal, petitioner argues the following points:

POINT I

TO DENY PETITIONER'S EXPUNGEMENT IS REPUGNANT TO THE EXPUNGEMENT STATUTE'S PURPOSE AS SET FORTH IN N.J.S.A. 2C:52-32 AND INTERPRETED IN CASE LAW AS WELL AS TO THE RECENT CHANGES TO THE EXPUNGEMENT STATUTE INDICATING A MORE LIBERAL INTERPRETATION AND APPLICATION TO THE BENEFIT OF PETITIONERS LIKE MR. D.

POINT II

THE COURT BELOW ERRED IN CONCLUDING THAT PETITIONER'S GUILTY PLEA TO VIOLATING N.J.S.A. 2C:33-12C, MAINTAINING A NUISANCE, (FOURTH DEGREE) IN TWO COUNTIES, RESULTING FROM HIS OPERATION OF A SINGLE BUSINESS, WERE SEPARATE AND DISTINCT CONVICTIONS, RATHER THAN A SINGLE SIMULTANEOUS COURSE OF CONDUCT/MATTER FOR PURPOSES OF EXPUNGEMENT.

POINT III

MR. D. SHOULD NOT BE BARRED FROM EXPUNGEMENT BY THE FAILURE OF HIS PRIOR COUNSEL TO PROPERLY CONSOLIDATE THESE RELATED MATTERS IN ONE COUNTY FOR A SINGLE RESOLUTION.

The parties do not dispute the facts underlying petitioner's two convictions, but rather dispute the application of the expungement statute to those facts. The issue we must resolve is therefore a legal issue, which we consider de novo. In re Criminal Records of R.Z., 429 N.J. Super 295, 300 (App. Div. 2013); In re Ross, 400 N.J. Super. 117, 121 (App. Div. 2008).

The expungement statute provides in pertinent part:

In all cases, except as herein provided, wherein a person has been convicted of a crime under the laws of this State and who has not been convicted of any prior or subsequent crimes, whether within this State or any other jurisdiction, and has not been adjudged a disorderly person or petty disorderly person on more than two occasions may, after the expiration of a period of ten years from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later, present a duly certified petition as provided in section 2C:52-7 to the Superior Court in the county in which the conviction was entered praying that such conviction and all records and information pertaining thereto be expunged.

[N.J.S.A. 2C:52-2a.]

The question before us is whether with respect to either of petitioner's convictions, he had "been convicted of any prior or subsequent crime." N.J.S.A. 2C:52-2a. A petitioner has the burden of proving "the objective element of section 2(a) that there are no prior or subsequent crimes." R.Z., supra, 429 N.J. Super. at 304. "[O]nce a defendant is convicted of two indictable offenses, no relief may be granted." State v. Blazanin, 298 N.J. Super. 221, 225 (App. Div. 1997).

Here, petitioner was convicted of separate offenses, and he failed to carry his burden of proving otherwise. Petitioner pled guilty to the third count of the Bergen County indictment, which charged him with maintaining a premises as a house of prostitution "on or about May 16, 2002." He pled guilty to the third count of the Middlesex County indictment, which charged him with maintaining a house of prostitution "on or between the first day of January, 2002, and the 17th day of May, 2002." Thus, the indictments charged petitioner, on the one hand, with maintaining a premises for prostitution on one day, and on the other with operating an ongoing criminal enterprise. The crimes occurred in different counties, and there is no credible evidence that the specific crimes to which petitioner pled guilty occurred at the same time in two different counties.

Moreover, petitioner pled guilty, at different times, to separate indictments charging separate crimes. The totality of facts refute petitioner's argument that "the criminal acts in question did not arise on two separate occasions, were not distinct offenses, and were truly 'simultaneous[.]'"

Petitioner also argues that expunging his criminal convictions is consistent with the purpose of the expungement statute, and that the judge who denied his petition erred by not giving appropriate consideration to the policy underpinnings of the expungement statute. As we concluded in Ross, "the statute is clear and unambiguous on its face and is susceptible of only one interpretation." Supra, 400 N.J. Super. at 122. When statutory language is clear, we need not look to other sources to discern legislative intent. State v. Churchdale Leasing, Inc., 115 N.J. 83, 101 (1989).

In his last point, petitioner suggests that he was somehow prejudiced in his application for an expungement by his plea attorney's failure to consolidate the two indictments for disposition. Petitioner suggests that had he pled guilty to both indictments on the same date, he would have resolved both indictments by pleading guilty to a single count in only one indictment, or two counts in the same indictment. Petitioner's argument is based on speculation. To sustain his burden of proof, he must rely upon competent evidence, not supposition. See In re Kollman, 210 N.J. 557, 576 (2012) (explaining that in considering the statutory criteria, "courts may consider established or undisputed facts, not unproven allegations"); R.Z., supra, 429 N.J. Super. at 307 (noting that a court may not assume unproved facts).

Affirmed.

1 Petitioner submitted his affidavit and the pre-trial intervention form to the judge who considered his expungement petition. Petitioner also filed with the judge letters of recommendation, a witness list for one of the underlying offenses, and evidence of the disbarment of the attorney who represented him during the criminal proceedings on the underlying charges. The parties have apparently accepted the "facts" in these documents as neither party has objected to the documentary evidence.