IN THE MATTER OF THE EXPUNGEMENT OF E.M.

RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court."
     Although it is posted on the internet, this opinion is binding only on the
       parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2577-16T3

IN THE MATTER OF THE
EXPUNGEMENT OF E.M.1
______________________________

             Submitted January 22, 2018 – Decided February 8, 2018

             Before Judges Sabatino and Ostrer.

             On appeal from Superior Court of New Jersey,
             Law Division, Essex County, Docket No. MX-470-
             15.

             Essex-Newark Legal Services, attorneys for
             appellant E.M. (Felipe Chavana, Executive
             Director, of counsel and on the brief;
             Elizabeth A. Duelly, on the brief).

             Robert D. Laurino, Acting Essex County
             Prosecutor, attorney for respondent State of
             New Jersey (Frank J. Ducoat, Special Deputy
             Attorney General/Acting Assistant Prosecutor,
             of counsel and on the brief).

PER CURIAM

       After   E.M.    fulfilled    all   but    one   condition   of   pretrial

intervention, the trial court entered a June 2013 order dismissing

the   indictment      charging   him   with     second-degree    conspiracy       to



1
  We grant petitioner's renewed request, which is unopposed, to
shield his name and to impound the record.
commit theft; second-degree theft; and second-degree financial

facilitation of criminal activity.          The one remaining unfulfilled

condition was payment of restitution of over $58,000.                Defendant

had dutifully paid $102 a month, as ordered, but a balance of over

$55,000 remained.     The court ordered entry of a civil judgment in

favor of the Probation Division for that amount.                Over two years

later, still dutifully reducing his amount due, E.M. filed a

verified petition to expunge the record of his arrest, indictment

and related proceedings, pursuant to 
N.J.S.A. 2C:52-6.

      The prosecutor initially opposed the petition, contending

that (1) the arrest was "the subject matter of civil litigation,"


N.J.S.A. 2C:52-14(d); and (2) "the need for the availability of

the   records    outweigh[ed]   the       desirability"    of     expungement,


N.J.S.A.     2C:52-14(b).   The    trial     court    thereafter     dismissed

defendant's petition without prejudice "because petitioner owes a

balance."

      E.M.    appeals,   arguing   that      his     outstanding     financial

obligation is not an impediment to expungement.              Abandoning its

position before the trial court, the State now agrees.                  Noting

that the trial court did not rely on its "need for the availability

of records" argument, the State also does not renew that position

before us.



                                      2                                A-2577-16T3
     We agree with the parties and write briefly because the issue

is capable of repetition.         The question is a purely legal one that

we review de novo.        In re Expungement Petition of J.S., 
223 N.J.
 54, 72 (2015). We need look no further than the plain, unambiguous

language of the statute.         In re Kollman, 
210 N.J. 557, 568 (2012).

A person is generally entitled "to expungement of all records and

information relating to [an] arrest or charge" after dismissal,

acquittal, or discharge without a conviction or finding of guilt.


N.J.S.A. 2C:52-6(a).       However, "[a]ny person who has had charges

dismissed against him [or her] pursuant to a program of supervisory

treatment pursuant to N.J.S.[A.] 2C:53-12 [pretrial intervention]

. . . shall be barred from the relief provided . . . until six

months after the entry of the order of dismissal." 
N.J.S.A. 2C:52-

6(c)(1).

     E.M.    satisfied     those    prerequisites.      Therefore,    he   was

presumptively entitled to expungement, and the burden shifted to

the State to establish a basis for denying relief under 
N.J.S.A.

2C:52-14.     See Kollman, 
210 N.J. at 569-70 (discussing shifting

burdens).

     As     the   State    now     concedes,   an    outstanding   judgment,

consisting of a restitutionary balance due, does not render E.M.'s

"arrest . . . the subject matter of civil litigation."               
N.J.S.A.

2C:52-14(d).      That provision refers to pending civil litigation.

                                       3                              A-2577-16T3
State v. J.R.S., 
398 N.J. Super. 1, 5 (App. Div. 2008).   Also, the

"civil litigation" exception was apparently designed to assure

that the litigant is not deprived of the information necessary to

prosecute or defend the litigation.    Id. at 5-6.    There is no

pending litigation here, nor does the Probation Division need to

use E.M.'s arrest records to enforce the civil judgment, which

shall survive the expungement.

     Therefore, we reverse the trial court's order and remand for

entry of an order of expungement.




                                 4                          A-2577-16T3