IN THE MATTER OF THE EXPUNGEMENT PETITION OF R.B.T

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                             NOT FOR PUBLICATION WITHOUT THE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-2454-19T2

IN THE MATTER OF THE
EXPUNGEMENT PETITION
OF R.B.T.
_________________________

                Argued September 14, 2020 – Decided October 14, 2020

                Before Judges Messano, Hoffman and Smith.

                On appeal from the Superior Court of New Jersey, Law
                Division, Monmouth County, Accusation No. 18-02-
                0149.

                Carey J. Huff, Assistant Prosecutor, argued the cause
                for appellant State of New Jersey (Christopher J.
                Gramiccioni, Monmouth County Prosecutor, attorney;
                Carey J. Huff, of counsel and on the brief).

                Charles J. Uliano argued the cause for respondent
                R.B.T. (Chamlin, Uliano & Walsh, attorneys; Charles
                J. Uliano, of counsel; Andrew T. Walsh, on the brief).

PER CURIAM

        R.B.T. was a municipal court judge in nine towns in Monmouth County:

Union Beach, Oceanport, Colts Neck, Tinton Falls, Rumson, Neptune City,

Bradley Beach, and Eatontown. R.B.T. pled guilty to committing numerous
illegal acts on multiple occasions in his capacity as a judge. He converted all or

part of municipal court defendants' suspended fines to contempt of court fines

without a legal basis. He issued municipal defendants contempt of court fines

for being late without confirming if they were late, nor did he give "late"

defendants an opportunity to explain.       Further, R.B.T. issued defendants

contempt of court fines for disobeying prior court orders without confirming

that such prior orders existed. He also suspended fines and converted them to

contempt of court fines after defendants left court. Also, on some occasions,

when R.B.T. accepted an affidavit from attorneys on behalf of their client, he

would suspend the fine and convert it to contempt of court after the attorney left

the room.    On one occasion, he threatened a defendant who questioned a

contempt assessment with jail when that defendant stated that he wanted a

lawyer.

      R.B.T.'s converted fines did not go to him personally, but the improper

fines helped him get appointed to various municipal judgeships. R.B.T. knew

that Monmouth County and the towns he served shared fine money equally from

motor vehicle tickets. He also knew 100% of the contempt of court fines go to

the town and are not shared with the county. Thus, by suspending mandatory




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fines and converting those fines to contempt of court sanctions, R.B.T. diverted

money away from Monmouth County to the towns.

      As a result of his improper scheme, the towns received more than their

fair share of fine revenue from fines. Thus, R.B.T. "guaranteed future

appointments to the bench" by converting fines to contempt fines and securing

more money for the towns than they otherwise would have received. R.B.T.'s

illegal actions resulted in $1.2 million dollars of ticket-related revenue,

$600,000 of which was improperly diverted to the towns.

      After investigating R.B.T.'s conduct, the Monmouth County Prosecutor's

Office had him arrested and charged with falsifying records. In exchange for his

guilty plea, the prosecutor allowed R.B.T. to apply for Pre-Trial Intervention

(PTI).1 As part of his plea deal, R.B.T. also agreed to forfeit public office. After

R.B.T. successfully completed PTI, the court dismissed the fourth-degree

charge. R.B.T. then moved for an expungement of the criminal records relating




1
   PTI is a diversionary program where certain offenders can avoid criminal
prosecution by receiving early rehabilitative services expected to deter future
behavior. State v. Roseman,  221 N.J. 611, 621 (2015). The Criminal Division
Manager must recommend an offender and the prosecutor must give consent for
an offender to be admitted into PTI. Ibid.


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to the arrest and subsequent admission into PTI six months after completion of

PTI as required by statute. 2

       The State objected to the expungement petition. Judge Jill O'Malley heard

oral argument and explained her reasons for ordering the expungement in a

thorough written opinion.

       The State presents the following arguments on appeal:

             (1) The trial court erred in determining the State was
             precluded from objecting to the expungement because
             it did not object to PTI following a guilty plea.

             (2) The trial court was incorrect that the investigation
             reports are not expunged; and

             (3) The State met its burden to show that the need for
             the records outweighed defendant's interest in relief.

Following our review of the record and the parties' briefs, we affirm the trial

court's order granting expungement.         However, we remand for the limited

purpose of identifying which records associated with R.B.T.'s arrest and

subsequent admission into the PTI Program are to be expunged, and which

records, if any, are to be excluded from the expungement order.

       Prosecutors enjoy wide discretion in making determinations on PTI

applications under  N.J.S.A. 2C:43-12. State v. Baynes,  148 N.J. 434, 443


 2 See 2C:52-6(c)(1).
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(1997). Courts will generally not overturn a prosecutor's decision to permit a

criminal defendant's admission into PTI. Baynes,  148 N.J. at 443-44. Such

prosecutorial discretion is afforded "enhanced deference" by our courts. State

v. Baynes,  148 N.J. 434, 443 (1997); State v. Wallace,  146 N.J. 576, 589 (1996);

State v. Nwobu,  139 N.J. 236, 246 (1995) (citing State v. Kraft,  265 N.J. Super.
 106, 111-12 (1993)); see also State v. DeMarco,  107 N.J. 562 (1987).

       N.J.S.A. 2C:52-6(a) sets forth the criteria for expungement of arrest

records not resulting in conviction, including under circumstances where a

person has successfully completed PTI and the original charge has been

dismissed. The relevant section of the statute reads as follows:

            a. When a person has been arrested or held to answer
            for a crime . . . under the laws of this State or of any
            governmental entity thereof and proceedings against
            the person were dismissed, the person was acquitted, or
            the person was discharged without a conviction or
            finding of guilt, the Superior Court shall, at the time of
            dismissal, acquittal, or discharge, or, in any case set
            forth in paragraph (1) of this subsection, order the
            expungement of all records and information relating to
            the arrest.

            [N.J.S.A. 2C:52-6(a)]

      After being admitted into and successfully completing a supervisory

program, an applicant must wait six months after the entry of the order of

dismissal to apply for expungement.  N.J.S.A. 2C:52-6(c)(1). Upon completion

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of this waiting period the applicant is presumptively entitled to expungement.

In re Kollman,  210 N.J. 557, 570 (2012) (citing In re Expungement Petition of

D.H.,  204 N.J. 7, 18 (2010)).

      We consider de novo the trial court's interpretation of the expungement

statute. Kollman,  210 N.J. at 577-78 (2012) (applying de novo standard of review

to questions of interpretation of the statute governing expungement of criminal

records); In re Expungement of the Criminal Records of R.Z.,  429 N.J. Super. 295,

300 (App. Div. 2013). However, we are obliged to give deference to the factual

findings of the trial court. See, e.g., In re Civil Commitment of R.F.,  217 N.J. 152,

174-75 (2014).

      The initial burden of proof for an expungement is on the applicant. In re

D.H.,  204 N.J. at 18. The applicant "has the burden to satisfy the requirements

of the expungement statute by a preponderance of the evidence." Ibid. Once

the applicant has satisfied the requirements of the expungement statute, they are

presumptively entitled to expungement and the burden then shifts to the State.

Kollman,  210 N.J. at 570. "To meet its burden, the State ha[s] to demonstrate

some cause for denial by a preponderance of the evidence." Ibid.

      The Legislature has established multiple grounds for denial of a petition

of expungement.  N.J.S.A. 2C:52-14, provides, in relevant part:


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            A petition for expungement filed pursuant to this
            chapter shall be denied when:

                  b. The need for the availability of the records
                  outweighs the desirability of having a person
                  freed from any disabilities as otherwise provided
                  in this chapter. An application may be denied
                  under this subsection only following objection of
                  a party given notice pursuant to N.J.S.2C:52-
                  10 and the burden of asserting such grounds shall
                  be on the objector.

                  Ibid.

The grounds for grant or denial of expungement set forth in the statute require

proofs. Thus, we must defer to a trial court's factfinding with respect to whether

petitioner met his burden, establishing a case for expungement, and whether the

State met its burden in opposing the application. Kollman,  210 N.J. 557, 577-

79 (applying abuse of discretion standard of review to public interest

determination for criminal expungements after five years); see also In re Appeal

of the Denial of the Application of Z.L.,  440 N.J. Super. 351, 355-56 (App. Div.

2015) (applying deferential standard of review to trial court denial of firearms

purchaser identification card (FPIC) because "issuance would not be in the

interest of the public health, safety or welfare" under  N.J.S.A. 2C:58-

3(c)(5) (internal quotation marks and citation omitted)).




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      A judicial determination that expungement should be granted does not,

however, end the inquiry. See In re D.H.,  204 N.J. at 21. The next question is,

what happens to the various records related to the expunged charge? Under

 N.J.S.A. 2C:52-1, expungement is defined as "the extraction, sealing,

impounding, or isolation of all records on file."  N.J.S.A. 2C:52-1(a). When the

court orders an expungement, records are extracted and isolated, but not

destroyed. Kollman,  210 N.J. at 568.             Expunged records shall include

complaints, warrants, arrests, commitments, processing records, fingerprints,

photographs, index cards, "rap sheets," judicial dockets and related items.

 N.J.S.A. 2C:52-1; Kollman,  210 N.J. 557, 568-69.

      The Supreme Court in In re D.H. found that the legislature "foresaw instances

where expungement could be granted, but in the exercise of legislatively guided

judicial discretion, something less than all of the records resulting from petitioner's

arrest and conviction would be subject to the expungement order."  204 N.J. at 21.

      The State's initial argument, that it was precluded by the trial judge from

objecting to expungement because it consented to PTI, misreads the trial judge's

well written opinion. Prosecutors enjoy wide discretion on PTI admissions, and

the trial judge noted that the State did not object to this PTI application. The

State's authority to consent to an applicant’s admission into PTI and pave the


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way for later dismissal of the charges is given enhanced deference by our courts.

Baynes,  148 N.J. at 443-44. A thorough review of Judge O'Malley's opinion

reveals no language barring the State from objecting to expungement. The judge

simply noted that the State elected to exercise its prosecutorial discretion and

consent to R.B.T.'s entry into PTI. 3 Having done so, the State is charged with

understanding that a presumption exists in favor of expungement where there

has been dismissal of criminal charges. See Kollman,  210 N.J. at 570. The trial

judge found that R.B.T. met his initial burden on expungement. The judge then

gave the State full and fair opportunity to oppose expungement. We see nothing

in the record to suggest otherwise.

      Once R.B.T. met his burden of proof on expungement, the burden shifted

to the State to overcome the presumption in favor of expungement by a

preponderance of the evidence. The State did not do so; consequently, point

three of its argument on appeal fails. The State's opposition to the expungement

was primarily grounded in  N.J.S.A. 2C:52-14(b).          It argued that public



3
  Judge O’Malley wrote: " [I]f the State was concerned with preserving
Petitioner's matter for posterity than(sic) it should not have offered or granted
admission into PTI in the first place. By doing so, the State all but guaranteed
expungement under  N.J.S.A. 2C:52-6(a), which was in place at the time PTI was
offered to Petitioner. The State cannot cry foul on a situation of their own
doing."
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availability of the records associated with R.B.T.'s criminal case "would help

clarify" individual municipal court cases "mishandled" by R.B.T. It further

argued that this interest outweighed the desirability of having R.B.T. freed from

the disabilities of having a criminal record. The trial judge rejected the 2C:52-

14(b) argument, noting that the State offered no specific evidence of any

ongoing litigation or investigation regarding the municipal court cases affected

by R.B.T.'s illegal acts. Finally, the State argued that the public "has a right to

know" how the justice system handled R.B.T.'s crimes.

      The court did not find the public interest "right to know" argument

persuasive, noting that the wide media coverage of R.B.T.'s arrest and court

appearances and the digital public record attached to R.B.T.'s name would

satisfy the public's "right to know". We will not substitute our judgement for

the trial court's if the ruling was within a range of acceptable decisions.

Kollman,  210 N.J. at 577.

      "The question of whether expungement should be granted is different in

both form and substance from the separate but related question as to the reach

of any resulting order of expungement." In re D.H.,  204 N.J. at 20-21. Although

the trial court stated that "the underlying reports or evidence secured during the

investigation "were not sought to be expunged," presumably by R.B.T., it is


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unclear precisely what reports or evidence are being referred to on the record

presented. When a court grants expungement, there can be circumstances where

less than all records should be extracted, sealed, isolated, or impounded. In re

D.H.,  204 N.J. at 21.

      We remand the matter to the judge to conduct a hearing to clarify with

specificity which records will and will not be expunged. We leave the conduct

of the hearing to the sound discretion of the judge. Such a hearing is consistent

with the principles espoused by the Supreme Court in In re D.H.

      Affirmed as to the order granting expungement. Remanded to the trial

court for a hearing on what records relating to R.B.T.'s case, if any, are to be

exempt from the expungement order.

      Affirmed and remanded. We do not retain jurisdiction.




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