IN THE MATTER OF THE EXPUNGEMENT PETITION OF R.Z.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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 R.Z.

_________________________

Argued May 28, 2014 Decided June 20, 2014

Before Judges Reisner, Ostrer and Higbee.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 97-09-0044.

Daniel G. Giaquinto argued the cause for appellant R.Z. (Kern Augustine Conroy & Schoppmann, P.C., attorneys; Mr. Giaquinto, of counsel and on the briefs; R. Bruce Crelin, on the briefs).

Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent State of New Jersey (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Mr. Brater, of counsel and on the brief).

PER CURIAM

We consider again R.Z.'s effort to expunge the records of his 1999 convictions, upon guilty pleas, of second-degree theft by deception, N.J.S.A. 2C:20-4, and second-degree financial facilitation of criminal activity, commonly known as money laundering, N.J.S.A. 2C:21-25.

We reversed the trial court's 2012 order granting R.Z.'s expungement petition. In re Expungement of Criminal Records of R.Z., 429 N.J. Super. 295 (App. Div. 2013). We did so because R.Z. failed to meet the burden, which we allocated to him, to show that he committed his crimes concurrently, and not on "'separate occasions.'" Id. at 297 (quoting In re Ross, 400 N.J. Super. 117, 122 (App. Div. 2008)). In his plea, R.Z. admitted that he, along with his superiors, submitted fraudulent claims for Medicaid reimbursement over an unspecified period of time; in October 1995, he received two checks endorsed in blank totaling $50,500, the partial proceeds of the theft, which he used to purchase an automobile; and he participated in other money laundering activities. Id. at 298-99. Relying on Ross, supra, we held that N.J.S.A. 2C:52-2(a) required proof of concurrency by stating that expungement of a conviction record is only available to a person who has not been convicted of any prior or subsequent crime. R.Z.,supra, 429N.J. Super.at 301-02.

We remanded R.Z.'s petition to the trial court, to provide R.Z. with an opportunity to satisfy his burden "that neither one of his two crimes was committed prior to, or subsequent to the other." Id. at 308. We stated that satisfactory proof may consist of the existing plea and sentencing record, if undisputed, or, if necessary, facts outside the record, such as a certification from R.Z. Id. at 305-07. Once R.Z. satisfied his burden of production, the burden would shift to the State to present any available contrary evidence. Id. at 303. However, "unproved and unadmitted allegations," such as those in the indictment, would not suffice. Id. at 305.

Upon remand, R.Z. submitted a certification in support of his claim, but marshalled no other proofs. R.Z. asserted that he decided to participate in the scheme involving theft and money laundering at one time. However, he could not recall when he committed the two crimes for which he was convicted. R.Z. also argued, for the first time, that the 2010 amendment to the expungement statute, L. 2009, c. 188, 1 (codified as amended at N.J.S.A. 2C:52-2(a)), which authorized discretionary expungement after only five years when the public interest warranted it, relieved R.Z. of the need to satisfy the concurrency requirement.

In a written opinion, Judge John T. Mullaney, Jr., rejected both arguments. He concluded that "R.Z. has not satisfied his burden of demonstrating that his crimes were contemporaneous, as opposed to prior or subsequent to one another." He also concluded that the amendment allowing an "early pathway" to expungement was not intended to relax other preconditions of expungement.

Judge Mullaney noted the indictment charged that the theft began on August 26, 1995, and ended on December 22, 1995, and the money laundering ran from September 6, 1995, to December 16, 1995. R.Z. admitted that his activities fell within the ranges described in the indictment, yet "R.Z. has not clarified the actual dates of his offenses." Judge Mullaney quoted at length from R.Z.'s certification. R.Z. stated, in pertinent part:

4. Based on my present recollection I cannot dispute the dates contained in the indictment regarding the acts of the codefendants. Regarding my own participation, I cannot recall at this time the exact dates of my acts constituting my participation in the scheme, although they were clearly within the dates contained in the indictment. . . .

5. My participation in both offenses, the plan as I knew it and its component parts, commenced at the same time. . . . I recall the plan being intact from when my participation commenced.

Judge Mullaney summarized R.Z.'s admitted activities in the scheme, which included the submission of reimbursement claims for blood samples of phantom patients, and the distribution of the proceeds to the scheme's participants. The proceeds included the $50,500 payment to R.Z. The judge noted "that the nature of the scheme was ongoing and continuous," as described by R.Z. "[B]ased on the date ranges contained in the indictment and R.Z.'s certification, the theft was a prior offense as it occurred before the money laundering and it also was a subsequent offense as it continued after the money laundering ended." The judge concluded

The Court is unable to glean anything about the timing of the offense from the submissions of R.Z. R.Z. has not provided specific dates of the offenses and only indicates that his participation in support of the scheme coincided within the timeframe of the theft of which he was convicted. This leaves unanswered whether R.Z. participated in the thefts, the proceeds of which he did not launder from December 16, 1995 through December 22, 1995. Because R.Z. has not provide[d] specific dates of the offenses in his certification and the plea allocution only refers to "undated" false submissions and money laundering activities, R.Z. has not satisfied his burden of establishing the offenses occurred concurrently.

Judge Mullaney also was unpersuaded by R.Z.'s argument that the 2010 statute not only reduced the time-period for expungement when the public interest warranted it, but also relieved an early pathway petitioner of the burden of proving that there were no prior or subsequent crimes.

R.Z. argues in the alternative that expungement should be permitted based on the early pathway amendment, N.J.S.A. 2C:52-2a(2), to the expungement statute. R.Z. argues that the early pathway amendment is an alternate route for relief even if he is barred from seeking expungement due to the "prior or subsequent crime" pre-requisite set forth in N.J.S.A. 2C:52-2a. R.Z.'s argument for an alternative route is erroneous. The statutory language and case law is clear in that an applicant seeking expungement under the "early pathway" provision must still meet the other requirements of N.J.S.A. 2C:52-2a. In re Kollman, 210 N.J. 557, 570-71 (2012). Therefore, R.Z. is not eligible for discretionary expungement as he has been convicted of a prior or subsequent crime. Because R.Z. is ineligible for discretionary expungement, N.J.S.A. 2C:52-2a(2), the Court will not engage in the superfluous public interest analysis included in both the State's and petitioner's briefs.

On appeal, R.Z. argues that he submitted sufficient proof that he was not convicted of a prior or subsequent crime. He also renews his argument that the 2010 amendments relieved him of that burden, if he could prove his expungement was in the public interest. Lastly, he argues that we erred in our initial decision in allocating to him the burden of demonstrating the non-existence of a prior or subsequent crime. We are unpersuaded.

First, we shall not revisit our determination that a petitioner, and not the State, should bear the burden to demonstrate compliance with N.J.S.A. 2C:52-2(a), including the absence of a prior or subsequent crime. See, e.g., Wash. Commons, LLC v. Jersey City, 416 N.J. Super. 555, 564 (App. Div. 2010) (stating that under the law of the case doctrine, "an issue . . . determined on the merits in a prior appeal . . . cannot be relitigated in a later appeal of the same case"), certif. denied, 205 N.J. 318 (2011). No further comment is warranted in a written opinion. R. 2:11-3(e)(2).

Regarding R.Z.'s alternative arguments that he met his burden, or the 2010 statute relieved him of the burden, we affirm substantially for the reasons set forth in Judge Mullaney's written opinion. However, we consider in greater detail R.Z.'s interpretation of the 2010 statute.

To address R.Z.'s statutory argument, we must compare the pre- and post-amendment versions of subsection (a) of N.J.S.A. 2C:52-2, regarding the expungement of records of indictable offenses. In its previous form, subsection (a) consisted of two unnumbered paragraphs. The first paragraph required that petitioners have no convictions for a prior or subsequent crime, and authorized expungement once ten years expired since the conviction, or completion of the sentence that is, fine payment, release from incarceration, or release from probation or parole whichever was later:

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 crime, 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 10 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 verified 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.

Although subsequent convictions for no more than two disorderly or petty disorderly offenses shall not be an absolute bar to relief, the nature of those conviction or convictions and the circumstances surrounding them shall be considered by the court and may be a basis for denial of relief if they or either of them constitute a continuation of the type of unlawful activity embodied in the criminal conviction for which expungement is sought.

[N.J.S.A. 2C:52-2(a) (2009) (emphasis added).]

The 2010 amendment inserted, between the two above-quoted paragraphs, four paragraphs that described two exceptions to the ten-year waiting period. The first deals with unpaid fines. The second addresses expungements "in the public interest" five years after the later of conviction, or sentence completion.

Notwithstanding the provisions of the preceding paragraph, a petition may be filed and presented, and the court may grant an expungement pursuant to this section, although less than 10 years has expired in accordance with the requirements of the preceding paragraph where the court finds:
 

(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.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.

 
In determining whether compelling circumstances exist for the purposes of paragraph (1) of this subsection, a court may consider the amount of the fine or fines imposed, the person's age at the time of the offense, the person's financial condition and other relevant circumstances regarding the person's ability to pay.

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

The Supreme Court reviewed at length the history and purpose of the 2010 amendment "to reward efforts at rehabilitation and facilitate reentry when appropriate" by providing a "five-year pathway to expungement." Kollman, supra, 210 N.J. at 570-80.

R.Z.'s argument rests on his interpretation of the "notwithstanding" clause that follows the first paragraph of the subsection. He contends that the clause overrides the first paragraph's requirement that the petitioner have no prior or subsequent crime. Thus, under paragraph (2), a petitioner need only show three things: (1) five years have elapsed since the later of conviction or sentence completion; (2) the petitioner has had no subsequent convictions, whether of a crime or a disorderly or petty disorderly persons offense; and (3) expungement serves the public interest. He cites Kollman, supra, which also identified those three prerequisites. 210 N.J. at 571.

R.Z. relies on the common meaning of "notwithstanding." See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 126 (2012) ("A dependent phrase that begins with notwithstanding indicates that the main clause that it introduces or follows derogates from the provision to which it refers."). He also argues that if the "no prior or subsequent crime" requirement still applied to five-year pathway applications, then the reference in paragraph (2) to "not been convicted of a crime . . . since the time of the conviction" would be superfluous. Statutory construction that would render a provision superfluous should be avoided. See, e.g. Paper Mill Playhouse v. Millburn Twp., 95 N.J. 503, 521 (1984). Consequently, he concludes that a five-year pathway petitioner need not demonstrate the absence of a prior or subsequent crime. Rather, he need only demonstrate the absence of a subsequent conviction of a crime or offense.

R.Z. recognizes that, under his interpretation, the 2010 amendment relaxed the prior expungement requirements in a way separate and distinct from shortening the waiting period. However, R.Z. argues that the requirement to prove that the expungement serves the public interest remains a significant impediment, and would filter out undeserving petitioners.

R.Z.'s creative interpretation is unconvincing. "We must . . . read the statute as a whole and not seize upon one or two words as a fixed guide to the meaning of the entirety." State v. Friedman, 209 N.J. 102, 117 (2012). R.Z. attaches excessive weight to the "notwithstanding clause," and isolates it from the balance of the amendatory language. Although "notwithstanding" generally reflects the intention to override, the "notwithstanding" clause here is targeted to override only the first paragraph's reference to a ten-year waiting period. It states, "Notwithstanding the provisions of the preceding paragraph, a petition may be filed and presented, and the court may grant an expungement pursuant to this section, although less than 10 years has expired in accordance with the requirements of the preceding paragraph . . . ." N.J.S.A. 2C:52-2(a) (emphasis added). If one were to accept R.Z.'s reading that the "notwithstanding clause" overrides the first paragraph entirely, the "although less than 10 years has expired" clause would be unnecessary.

R.Z.'s interpretation also proves too much. If the "notwithstanding clause" overrode the entirety of the first paragraph, then the new paragraph (1), regarding unpaid fines, would lack essential meaning. That paragraph allows expungement even if ten years have not elapsed since satisfaction of a fine, "but the 10-year time requirement is otherwise satisfied" and the petitioner has complied with a payment plan or compelling circumstances prevented him or her from satisfying the fine. N.J.S.A. 2C:52-2(a)(1). The reference to the "10-year time requirement" implies that the requirements of the first paragraph survive, despite the "notwithstanding clause." Also, if the notwithstanding clause is as broad as R.Z. contends, then a "petition may be filed and presented" under the second paragraph, without regard to the requirement in the first paragraph that it be "duly verified" and presented "to the Superior Court in the county in which the conviction was entered." N.J.S.A. 2C:52-2(a).

To the extent the plain language is less than clear, we may turn to legislative history. Kollman, supra, 210 N.J. at 568. Yet, neither the Governor's initial policy initiative, nor the expressed goals of the legislation's sponsors, reflects the intention to override the "no prior or subsequent crime" requirement. The Governor's report called for expanded expungement opportunities for "first offenders" that is, persons without a conviction for a prior crime. See Strategy for Safe Streets and Neighborhoods, Executive Summary, issued by Gov. Jon S. Corzine (2007) at 24. The focus of the Governor's strategy was on shortening the waiting period, not expanding opportunities for multiple offenders. "Courts should also be given limited authority to grant expungement in a shorter time period under limited circumstances for certain offenders." Strategy for Safe Streets and Neighborhoods, Reentry, issued by Gov. Jon S. Corzine (2007) at 19.

The sponsor's bill statement also reflected the intention to reduce the waiting period. "Section 1 of the bill reduces the amount of time that must elapse before a person convicted of an indictable offense is eligible for expungement. . . . The bill would allow expungement for an indictable offense although less than 10 years has expired . . . ." Sponsor's Statement to Assembly Bill 1771, 213th Leg. 6 (2008). See also Senate Judiciary Committee Statement to Assembly Bill 1771, 213th Leg. 1 (2009) (same).

We presume "that amendatory acts do not change existing law further than is expressly declared or necessarily implied." In re J.B., 426 N.J. Super. 496, 508 (App. Div. 2012) (quoting Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction 22.30 (7th ed. 2009)). Consistent with that principle, we reject R.Z.'s argument that that 2010 amendment relieved petitioners using the five-year pathway from establishing they had no prior or subsequent convictions.

Finally, R.Z.'s interpretation would also run afoul of the general guide to interpreting the expungement statute. "This chapter shall be construed with the primary objective of providing relief to the one-time offender . . . ." N.J.S.A. 2C:52-32. We recognize the provision is a general guide. See, e.g., In re D.J.B., 216 N.J. 433, 446 (2014) (declining to apply section 32 so as to bar expungement of certain records of juveniles with multiple adjudications). However, in light of section 32, we should be reluctant to interpret an amendment to provide relief to multiple offenders without a clear expression of intent to do so.

Affirmed.