IN RE PETITION FOR EXPUNGEMENT OF THE CRIMINAL RECORD BELONGING TO T.O

NOT FOR PUBLICATION WITHOUT THE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-3148-18T1

IN RE PETITION FOR
EXPUNGEMENT OF THE
CRIMINAL RECORD
BELONGING TO T.O.
_______________________

                 Argued December 11, 2019 – Decided December 30, 2019

                 Before Judges Haas, Mayer and Enright.

                 On appeal from the Superior Court of New Jersey, Law
                 Division, Hudson County, Expungement No. 324-18.

                 William J. Palatucci argued the cause for appellant T.O.
                 (Gibbons PC, attorneys; William J. Palatucci, Jennifer
                 Ann Hradil, and Brendan J. Kelly, on the briefs).

                 Erin M. Campbell, Assistant Prosecutor, argued the
                 cause for respondent State of New Jersey (Esther
                 Suarez, Hudson County Prosecutor, attorney; Erin M.
                 Campbell, on the brief).

PER CURIAM

       Petitioner T.O. appeals from a February 15, 2019 order denying his

petition to expunge his convictions. We affirm.
      On May 2, 1994, petitioner pled guilty to aggravated assault,  N.J.S.A.

2C:12-(1)(b). On May 26, 1996, he pled guilty to possession of a controlled

dangerous substance within 1000 feet of school property,  N.J.S.A. 2C:35- -7.

Petitioner received a pardon for both convictions from Governor Chris Christie

in January 2018.

      On February 15, 2019, the trial court denied petitioner's request to

expunge all records pertaining to his convictions. The motion judge concluded:

            the rules for expungement have been relaxed recently,
            especially in the wake of criminal reform but it is not
            this [c]ourt's job to legislate from the bench; to extend
            statutory reforms or to determine expungement
            proceedings. This [c]ourt's purpose is to apply the law
            to the facts. The facts are that there were two
            convictions and that the statute only allows for one
            expungement, pardoned or not. Yes, the New Jersey
            Constitution is controlling. However, the New Jersey
            Constitution grants pardons but does not define the
            benefits and advantages of the pardon and again[,]
            pardons do not eliminate all the consequences of those
            convictions . . . . Therefore the petitioner's request . . .
            is barred by statute.

      On appeal, petitioner argues:

            POINT I

            THIS   COURT   MUST   CONSTRUE   THE
            EXPUNGEMENT STATUTE IN A WAY THAT
            GIVES THE GOVERNOR'S PARDON ITS FULL
            FORCE AND EFFECT.


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            POINT II

            THE GUBERNATORIAL PARDON REMOVED THE
            STATUTORY BAR TO EXPUNGEMENT OF
            [PETITIONER'S] MULTIPLE CONVICTIONS, AND
            [PETITIONER] THEREFORE QUALIFIES FOR
            EXPUNGEMENT.

            A.  N.J.S.A. 2C:52-2(a) Bars Expungement Based Upon
            the Fact of Certain Convictions Rather than the
            Commission of the Crime.

            B. The Gubernatorial Pardon Removed the Legal
            Disabilities Arising from [Petitioner's] Convictions,
            Thereby Lifting the Statutory Bar to Expungement.

      Petitioner argues the trial court erred in denying his petition for

expungement because such a denial "diminishes the Governor's constitutional

prerogative to issue a pardon." Petitioner insists that because Governor Christie

pardoned him, all disabilities flowing from his convictions have been eliminated

and he is entitled to an expungement.

      Our review of a trial court's statutory interpretation is de novo. McGovern

v. Rutgers,  211 N.J. 94, 108 (2012) (citing Real v. Radir Wheels, Inc.,  198 N.J.
 511, 524 (2009)).    "A trial court's interpretation of the law and the legal

consequences that flow from established facts are not entitled to any special

deference." Manalapan Realty v. Manalapan Twp. Comm.,  140 N.J. 366, 378

(1995).


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      When a question of law turns on the interpretation of a statute, we look to

the language and plain meaning of the statute to resolve any ambiguities in the

statute's interpretation. See State v. K.M.,  220 N.J. Super. 338, 339-40 (App.

Div. 1987). "When a statute is clear on its face, a court need not look beyond

the statutory terms to determine the legislative intent." State v. Churchdale

Leasing,  115 N.J. 83, 101 (1989).

      New Jersey's expungement statute expresses a clear, "primary objective

of providing relief to the one-time offender who has led a life of rectitude and

disassociated himself with unlawful activity."  N.J.S.A. 2C:52-32. "Also, 'a

central purpose of the expungement statute was to broaden the reliable base of

information that will be maintained for law enforcement[,]' thus 'requir[ing]

merely the extraction and isolation, not the destruction, of expunged records.'"

In re Expungement Petition of D.H.,  204 N.J. 7, 17 (2010) (quoting State v. XYZ

Corp.,  119 N.J. 416, 421 (1990)).

      On October 1, 2018,  N.J.S.A. 2C:52-2(a) was amended to allow

individuals to expunge more than one indictable offense under certain

circumstances.  N.J.S.A. 2C:52-2(a) now provides, in part:

            In all cases, except as herein provided, a person may
            present an expungement application to the Superior
            Court pursuant to this section if: . . . . the person has
            been convicted of multiple crimes or a combination of

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            one or more crimes and one or more disorderly persons
            or petty disorderly persons offenses under the laws of
            this State, all of which are listed in a single judgment
            of conviction, and does not otherwise have any prior or
            subsequent conviction for another crime or offense in
            addition to those convictions included in the
            expungement application, whether any such conviction
            was within this State or any other jurisdiction; or the
            person has been convicted of multiple crimes or a
            combination of one or more crimes and one or more
            disorderly persons or petty disorderly persons offenses
            under the laws of this State, which crimes or
            combination of crimes and offenses were
            interdependent or closely related in circumstances and
            were committed as part of a sequence of events that
            took place within a comparatively short period of time,
            regardless of the date of conviction or sentencing for
            each individual crime or offense, and the person does
            not otherwise have any prior or subsequent conviction
            for another crime or offense in addition to those
            convictions included in the expungement application,
            whether any such conviction was within this State or
            any other jurisdiction. . . .

      The purpose of the 2018 amendment to  N.J.S.A. 2C:52-2(a) was to "revise

procedures for expunging criminal and other records and information, including

the shortening of certain waiting periods before a person may seek an

expungement and increasing the number of convictions which may be

expunged." S. Judiciary Comm. Statement to S. 3307 1 (L. 2017, c. 244). The

Legislature explained that the addition of the "interdependent or closely related




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in circumstances" and "within a comparatively short period of time" language

was intended to allow expungement of "a so-called 'crime spree.'" Ibid.

         Petitioner does not suggest that the crimes he committed are set forth in

one judgment of conviction or are interdependent or closely related in

circumstances, so that he would be eligible for expungement under the recently

amended statute. Instead, he relies on his pardon and the provisions of  N.J.S.A.

2C:52-6 to contend he is eligible for expungement. He also points to In re L.B.,

 369 N.J. Super. 354 (Law Div. 2004), to support his claim that the trial court's

denial of expungement constituted error. We are not persuaded.

         Initially, we note the decision in L.B. is not binding upon us. L.B. also is

distinguishable because the petitioner in that case sought an expungement of her

lone indictable conviction after receiving a governor's pardon. In the instant

case, petitioner has two convictions involving distinct offenses from different

dates.

          N.J.S.A. 2C:52-6 permits expungement when arrests and charges do not

result in a conviction based on a "finding of guilt," or when the "proceedings

against the person were dismissed, [or] the person was acquitted . . . or

discharge[d]."  N.J.S.A. 2C:52-6(a). Here, petitioner pled guilty to two criminal

offenses, so his reliance on  N.J.S.A. 2C:52-6 is misplaced.


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      Next, regarding petitioner's assertion that his pardon should have triggered

an expungement of his convictions, we note expungement is not a right

guaranteed by constitutional or common law; it is purely the product of

legislation, and we are limited to the terms of the statute. In re G.P.B.,  436 N.J.

Super. 48, 50 (App. Div. 2014), aff'd sub nom In re Expungement Petition of

J.S.,  223 N.J. 54 (2015). Expungement is generally available for all criminal

convictions, except for those specifically listed as non-expungable in  N.J.S.A.

2C:52-2(b).

      An expungement petitioner "has the burden to satisfy the requirements of

the expungement statute[,] by a preponderance of the evidence." In re Criminal

Records of R.Z.,  429 N.J. Super. 295, 302-03 (App. Div. 2013) (alteration in

original) (quoting D.H.,  204 N.J. at 18). After a petitioner has established that

he or she meets the statutory requirements, the burden shifts to the State "to

'demonstrate[] by a preponderance of the evidence that there is a statutory bar

or that the petition should not be granted.'" D.H.,  204 N.J. at 18 (alteration in

original) (quoting In re G.R.,  395 N.J. Super. 428, 431 (App. Div. 2007)).

      The effect of an expungement is to deem an arrest, conviction and any

other proceedings "not to have an occurred, and a petitioner may answer any

questions relating to their occurrence accordingly."          N.J.S.A. 2C:52-27.


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Importantly, the expungement statute compels a person, whose record has been

successfully expunged, to still disclose the expunged information under certain

circumstances. Ibid. For example, a petitioner must still reveal the expunged

record if he or she is seeking employment with the judiciary or law enforcement.

 N.J.S.A. 2C:52-27(b). Thus, expunging a record does not remove the underlying

criminal acts from existence; instead, it creates a protective barrier to limit

certain entities' access to expunged records. See In re Kollman,  210 N.J. 557,

568 (2012).

      On the other hand, a pardon is a matter of executive grace. Storcella v.

State, Dep't of Treasury, Div. of State Lottery,  296 N.J. Super. 238, 243 (App.

Div. 1997) (citation omitted). A gubernatorial pardon forgives the crime. Id. at

244 (citation omitted). However, "a pardon does not obliterate the dishonorable

conduct which resulted in the conviction or 'wash out the moral stain thereof.'"

Ibid. (quoting Hozer v. Treasury Dep't,  95 N.J. Super. 196, 204 (App. Div.

1967)). "A pardoned person is restored to all rights of citizenship, and may vote,

and may serve on a jury, but not all consequences of the conviction are erased

by the pardon." Id. at 243-44 (citations omitted) (emphasis added).

      Just as the effects of a pardon and an expungement are distinguishable, so

too, is the genesis of each act. The Legislature has enacted and modified the


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expungement statute, whereas the executive branch is empowered to grant

gubernatorial pardons under Article 5, Section 2 of the New Jersey Constitution.

A pardon, "exclusively an executive function, is not subject to judicial review."

Brezizecki v. Gregorio,  246 N.J. 634, 644 (1990). By contrast, the grant or

denial of an expungement is subject to judicial review.

      Per Article 3, Section 1 of the New Jersey Constitution, "[t]he powers of

the government shall be divided among three distinct branches, the legislative,

executive, and judicial. No person or persons belonging to or constituting one

branch shall exercise any of the powers properly belonging to either of the

others, except as expressly provided in this Constitution."

      Our Supreme Court has adhered to the separation of powers doctrine,

specifically as it relates to expungement. Before the most recent amendment to

the expungement statute, the Court was asked to judicially carve-out an

exception to same. In J.S.,  223 N.J. 54, the petitioner was convicted of multiple

crimes within five days of each other. The J.S. Court determined that although

similar in nature, the crimes were not committed as part of a single,

uninterrupted criminal event. Id. at 77. Instead, each offense was a discrete

"crime" within the meaning of  N.J.S.A. 2C:52-2, and the second offense was

"subsequent" to the first, which rendered the petitioner ineligible for


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expungement under  N.J.S.A. 2C:52-2.           Ibid.   The Court emphasized it

"construe[d] the plain language of  N.J.S.A. 2C:52-2(a) to preclude

expungement" and concluded that, "as it is currently drafted,  N.J.S.A. 2C:52-

2(a) does not authorize expungement of the criminal records of individuals who

are in the position of petitioners. If the Legislature determines that expungement

should be available to such individuals, it can amend the statute to clarify its

intent in that regard." Id. at 59.

      The J.S. Court acknowledged the expungement statute was broadened in

2010 to expand expungement opportunities for offenders, yet, the expansion did

not include any alteration to the particularly relevant "prior or subsequent crime"

language of  N.J.S.A. 2C:52-2(a). J.S.,  223 N.J. at 71-72. As such, the Court

followed the plain language of the statute and affirmed the denial of an

expungement. See State v. A.N.J.,  98 N.J. 421, 427 (1985) (holding that the

judiciary's role is to strictly follow the requirements of the expungement statute,

even though "anomalies may occur").

      "Certainly, the Legislature is conversant with its own enactments,

particularly when a statute is considered for amendment." Ibid. (quoting Comm.

of Petitioners for Repeal of Ordinance No. 522 (2013) of Borough of W.

Wildwood v. Frederick,  435 N.J. Super. 552, 567 (App. Div. 2014)).


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Nevertheless, even with the expansion of the expungement statute in recent

years, the Legislature has not authorized a rather simple adjustment to the

statute's language to permit a pardon to constitute a separate basis for

expungement. We decline to judicially create such an exception. Accordingly,

we discern no reason to disturb the trial judge's denial of petitioner's request for

an expungement.1

      Affirmed.




1
   Petitioner's remaining arguments are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
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