S98

An Act concerning criminal and juvenile delinquency records, revising various parts of the statutory law, and supplementing chapter 52 of Title 2C of the New Jersey Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. (New section) a. As used in this section, “record” includes complaints, warrants, arrests, commitments, processing records, fingerprints, photographs, index cards, “rap sheets” and judicial docket records.

b. A person may present a duly verified petition to the Superior Court in the county in which the person was convicted of a crime praying that such conviction and all records pertaining thereto be sealed. No petition may be filed pursuant to this section until after the expiration of a period of five years from the date of conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later.

c. The procedure for obtaining an order to seal a record and the standards a court uses to evaluate a petition to seal a record shall be the same as that for obtaining an expungement pursuant to this chapter, except that the 10-year time requirement in subsection a. of N.J.S.2C:52-2 shall not apply.

d. A record related to an indictable offense that may not be expunged pursuant to subsections b. or c. of N.J.S.2C:52-2 may not be sealed pursuant to this section. The provisions of N.J.S.2C:52-16 through N.J.S.2C:52-26 and N.J.S.2C:52-28 through N.J.S.2C:52-32 shall apply to sealed records as they would apply to expunged records.

2. (New section) Unless otherwise provided by law, if an order sealing a record is granted pursuant to section 1 of P.L. , c.

(C. ) (pending before the Legislature as this bill), all records and index references relating to the offense shall be marked "sealed." In response to requests for information or records of the person who was arrested or convicted, all noticed officers, departments and agencies shall reply, with respect to the arrest, conviction or related proceedings which are the subject of the order, that there is no record information available with respect to such person. The petitioner may answer any questions relating to the occurrence accordingly, except as is provided in N.J.S.2C:52-27.

3. (New section) a. If the petitioner is convicted of a crime subsequent to the sealing of a criminal record pursuant to section 1 of P.L. , c. (C. ) (pending before the Legislature as this bill), the order to seal shall be null and void and the petitioner shall be ineligible thereafter to have a criminal record sealed or expunged pursuant to this chapter.

b. Prior to the entry of an order to seal a record pursuant to section 1 of P.L. , c. (C. ) (pending before the Legislature as this bill), the court shall inform the petitioner orally and in writing that any conviction of a crime subsequent to the sealing shall nullify the order and render the petitioner ineligible thereafter for sealing and expungement. The petitioner shall be required to acknowledge receipt of this information.

4. (New section) Except as provided in subsection b. of section 3 of P.L. , c. (C. ) (pending before the Legislature as section 3 of this bill), nothing in sections 1 through 4 of P.L. , c. (C. through C. ) (pending before the Legislature as sections 1 through 4 of this bill) shall preclude a person whose record is sealed pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill) from applying for an expungement pursuant to this chapter.

5. N.J.S.2C:52-21 is amended to read as follows:

2C:52-21. Use of Expunged Records in Conjunction with Setting Bail, Presentence Report or Sentencing.

Expunged records, or sealed records under [prior law] P.L.1973, c.191 (C.2A:85-15) now repealed or P.L. , c. (C. ) (pending before the Legislature as this bill), of prior arrests or convictions shall be provided to any judge, county prosecutor, probation department or the Attorney General when same are requested for use in conjunction with a bail hearing or for the preparation of a presentence report or for purpose of sentencing.

(cf: N.J.S.2C:52-21)

6. N.J.S.2C:52-22 is amended to read as follows:

2C:52-22. Use of Expunged Records by Parole Board.

Expunged records, or sealed records under [prior law] P.L.1973, c.191 (C.2A:85-15) now repealed or P.L. , c. (C. ) (pending before the Legislature as this bill), of prior disorderly persons, petty disorderly persons and criminal convictions shall be provided to the Parole Board when same are requested for the purpose of evaluating the granting of parole to the person who is the subject of said records. Such sealed or expunged records may be used by the Parole Board in the same manner and given the same weight in its considerations as if the records had not been expunged or sealed.

(cf: N.J.S.2C:52-22)

7. N.J.S.2C:52-23 is amended to read as follows:

2C:52-23. Use of Expunged Records by the Department of Corrections.

Expunged records, and records sealed under [prior law] P.L.1973, c.191 (C.2A:85-15) now repealed or P.L. , c. (C. ) (pending before the Legislature as this bill), shall be provided to the Department of Corrections for its use solely in the classification, evaluation and assignment to correctional and penal institutions of persons placed in its custody.

(cf: N.J.S.2C:52-23)

8. N.J.S.2C:52-27 is amended to read as follows:

2C:52-27. Effect of Expungement.

Unless otherwise provided by law, if an order of expungement is granted, the arrest, conviction and any proceedings related thereto shall be deemed not to have occurred, and the petitioner may answer any questions relating to their occurrence accordingly, except as follows:

a. The fact of an expungement, sealing pursuant to P.L.1973, c.191 (C.2A:85-15) now repealed or similar relief shall be disclosed as provided in section 2C:52-8b.

b. The fact of an expungement of prior charges which were dismissed because of the person's acceptance into and successful completion of a supervisory treatment or other diversion program shall be disclosed by said person to any judge who is determining the propriety of accepting said person into a supervisory treatment or other diversion program for subsequent criminal charges; and

c. Information divulged on expunged records or records sealed pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill) shall be revealed by a petitioner seeking employment within the judicial branch or with a law enforcement or corrections agency and such information shall continue to provide a disability as otherwise provided by law.

(cf: P.L.1981, c.290, s.45)

9. N.J.S.2C:52-2 is amended to read as follows:

2C:52-2. Indictable Offenses.

a. 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.

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 that 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.

In determining whether compelling circumstances exist for the purposes 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.

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.

b. Records of conviction pursuant to statutes repealed by this Code for the crimes of murder, manslaughter, treason, anarchy, kidnapping, rape, forcible sodomy, arson, perjury, false swearing, robbery, embracery, or a conspiracy or any attempt to commit any of the foregoing, or aiding, assisting or concealing persons accused of the foregoing crimes, shall not be expunged.

Records of conviction for the following crimes specified in the New Jersey Code of Criminal Justice shall not be subject to expungement: Section 2C:11-1 et seq. (Criminal Homicide), except death by auto as specified in section 2C:11-5; section 2C:13-1 (Kidnapping); section 2C:13-6 (Luring or Enticing); section 1 of P.L.2005, c.77 (C.2C:13-8) (Human Trafficking); section 2C:14-2 (Aggravated Sexual Assault); section 2C:14-3a (Aggravated Criminal Sexual Contact); if the victim is a minor, section 2C:14-3b (Criminal Sexual Contact); if the victim is a minor and the offender is not the parent of the victim, section 2C:13-2 (Criminal Restraint) or section 2C:13-3 (False Imprisonment); section 2C:15-1 (Robbery); section 2C:17-1 (Arson and Related Offenses); section 2C:24-4a. (Endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child); section 2C:24-4b.(4) (Endangering the welfare of a child); section 2C:24-4b. (3) (Causing or permitting a child to engage in a prohibited sexual act); section 2C:24-4b.(5)(a) (Selling or manufacturing child pornography); section 2C:28-1 (Perjury); section 2C:28-2 (False Swearing); section 2C:34-1b.(4) (Knowingly promoting the prostitution of the actor’s child); section 2 of P.L.2002, c.26 (C.2C:38-2) (Terrorism); subsection a. of section 3 of P.L.2002, c.26 (C.2C:38-3) (Producing or Possessing Chemical Weapons, Biological Agents or Nuclear or Radiological Devices); and conspiracies or attempts to commit such crimes.

Records of conviction for any crime committed by a person holding any public office, position or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof and any conspiracy or attempt to commit such a crime shall not be subject to expungement if the crime involved or touched such office, position or employment.

c. In the case of conviction for the sale or distribution of a controlled dangerous substance or possession thereof with intent to sell, expungement shall be denied except where the crimes [relate to] involve:

(1) Marijuana, where the total quantity sold, distributed or possessed with intent to sell was 25 grams or less [, or] ;

(2) Hashish, where the total quantity sold, distributed or possessed with intent to sell was five grams or less; or

(3) Any controlled dangerous substance provided that the conviction is of the third or fourth degree, where the court finds that expungement is consistent with the public interest, giving due consideration to the nature of the offense and the petitioner’s character and conduct since conviction.

d. In the case of a State licensed physician or podiatrist convicted of an offense involving drugs or alcohol or pursuant to section 14 or 15 of P.L.1989, c.300 (C.2C:21-20 or 2C:21-4.1), the court shall notify the State Board of Medical Examiners upon receipt of a petition for expungement of the conviction and records and information pertaining thereto or a petition to seal a record pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill).

(cf: P.L.1994, c.133, s.6)

10. Section 1 of P.L.1980, c.163 (C.2C:52-4.1) is amended to read as follows:

1. a. Any person adjudged a juvenile delinquent may have such adjudication expunged as follows:

(1) Pursuant to N.J.S.2C:52-2, if the act committed by the juvenile would have constituted a crime if committed by an adult;

(2) Pursuant to N.J.S.2C:52-3, if the act committed by the juvenile would have constituted a disorderly or petty disorderly persons offense if committed by an adult; or

(3) Pursuant to N.J.S.2C:52-4, if the act committed by the juvenile would have constituted an ordinance violation if committed by an adult.

For purposes of expungement, any act which resulted in a juvenile being adjudged a delinquent shall be classified as if that act had been committed by an adult.

b. Additionally, any person who has been adjudged a juvenile delinquent may have his entire record of delinquency adjudications expunged if:

(1) Five years have elapsed since the final discharge of the person from legal custody or supervision or 5 years have elapsed after the entry of any other court order not involving custody or supervision, except that periods of post-incarceration supervision pursuant to section 25 of P.L.1982, c.77 (C.2A:4A-44), shall not be considered in calculating the five-year period for purposes of this paragraph;

(2) He has not been convicted of a crime, or a disorderly or petty disorderly persons offense, or adjudged a delinquent, or in need of supervision, during the 5 years prior to the filing the petition, and no proceeding or complaint is pending seeking such a conviction or adjudication, except that periods of post-incarceration supervision pursuant to section 25 of P.L.1982, c.77 (C.2A:4A-44), shall not be considered in calculating the five-year period for purposes of this paragraph;

(3) He was never adjudged a juvenile delinquent on the basis of an act which if committed by an adult would constitute a crime not subject to expungement under N.J.S.2C:52-2;

(4) He has never had an adult conviction expunged; and

(5) He has never had adult criminal charges dismissed following completion of a supervisory treatment or other diversion program.

c. Any person who has been charged with an act of delinquency and against whom proceedings were dismissed may have the filing of those charges expunged pursuant to the provisions of N.J.S.2C:52-6.

(cf: P.L.1981, c.290, s.44)

11. N.J.S.2C:52-14 is amended to read as follows:

2C:52-14. Grounds for Denial of Relief. A petition for expungement filed pursuant to this chapter shall be denied when:

a. Any statutory prerequisite, including any provision of this chapter, is not fulfilled or there is any other statutory basis for denying relief.

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 2C:52-10 and the burden of asserting such grounds shall be on the objector, except that in regard to expungement sought for third or fourth degree drug offenses pursuant to paragraph (3) of subsection c. of N.J.S.2C:52-2, the court shall consider whether this factor applies regardless of whether any party objects on this basis.

c. In connection with a petition under section 2C:52-6, the acquittal, discharge or dismissal of charges resulted from a plea bargaining agreement involving the conviction of other charges. This bar, however, shall not apply once the conviction is itself expunged.

d. The arrest or conviction sought to be expunged is, at the time of hearing, the subject matter of civil litigation between the petitioner or his legal representative and the State, any governmental entity thereof or any State agency and the representatives or employees of any such body.

e. A person has had a previous criminal conviction expunged regardless of the lapse of time between the prior expungement, or sealing under [prior law] P.L.1973, c.191 (C.2A:85-15) now repealed or P.L. , c. (C. ) (pending before the Legislature as this bill), and the present petition. This provision shall not apply:

(1) When the person is seeking the expungement of a municipal ordinance violation or,

(2) When the person is seeking the expungement of records pursuant to section 2C:52-6.

f. The person seeking the relief of expungement of a conviction for a disorderly persons, petty disorderly persons, or criminal offense has prior to or subsequent to said conviction been granted the dismissal of criminal charges following completion of a supervisory treatment or other diversion program.

(cf: N.J.S.2C:52-14)

12. This act shall take effect on the 60th day after enactment, and shall apply to arrests and convictions which occurred prior to the effective date of this act.

STATEMENT

This bill makes various changes to the laws of this State concerning access and use of criminal and juvenile delinquency records.

Sealing of Criminal Records

Sections 1 through 4 of the bill permit criminal records to be sealed after five years. The purpose of these sections is to create an intermediate step between having the record of the conviction available and having it deemed not to exist. The differences between expungement under current law and sealing under this bill are as follows:

· Elapsed time requirement: Expungement may only be obtained after 10 years from the date of conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later. Sealing may be obtained after five years from the date of conviction, payment of the fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later.

· How the record is maintained: A record that is expunged must be kept separate and removed from the files of the agency that maintains the record pursuant to N.J.S.2C:52-15. Under the provisions of the bill, a sealed record need not be removed, but all records and index references relating to the offense shall be marked "sealed."

· Legal significance of the order: Under N.J.S.2C:52-27, when a conviction is expunged it is deemed not to have occurred, except that certain uses of expunged records are permitted pursuant to chapter 52 of Title 2C of the New Jersey Statutes. An order sealing records pursuant to this bill would not have this effect.

· Official response to inquiries about the person’s criminal record: Under N.J.S.2C:52-15, in response to requests for records concerning the person whose conviction was expunged all noticed officers, departments and agencies shall reply, with respect to the arrest, conviction or related proceedings which are the subject of the order, that there is no record information. Under the provisions of the bill, law enforcement officers and departments shall reply to any inquiry regarding the petitioner’s sealed criminal records that there is no record available with respect to such person.

· The person’s response to inquiries about their criminal record: A person whose conviction is expunged may respond to inquiries about the expunged conviction as if it never occurred. A person whose record is sealed pursuant to this bill may respond that there is no criminal record available.

The procedures for obtaining, standards for granting, and law concerning an order sealing a record are the same as for having a record expunged, except as provided above. A criminal offense of such a nature that it may not be expunged under current law may not be sealed pursuant to this bill.

A conviction of a crime subsequent to the sealing of a criminal record would nullify the sealing order and make the person ineligible to have a criminal record sealed or expunged thereafter. The bill requires the court to inform the person orally and in writing of the effects of a subsequent conviction prior to the entry of the order.

Sections 5 through 8 of the bill amend current law to differentiate between records sealed under an older process used before the adoption of chapter 52 of Title 2C of the New Jersey Statutes and records sealed pursuant to this bill.

Expungement of Criminal Records

Sections 9 through 11 of the bill change the criteria for expungement of criminal convictions and adjudications of delinquency.

Section 9 of the bill allows expungement for an indictable offense although less than 10 years has expired if the court finds that 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 by the court, or could not do so due to compelling circumstances affecting his ability to satisfy the fine. In determining whether compelling circumstances exist, a court may consider the amount of the fine 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.

Section 9 of the bill adds the following crimes to the list of crimes that may not be expunged:

· Human Trafficking, section 1 of P.L.2005, c.77 (C.2C:13-8);

· Causing or permitting a child to engage in a prohibited sexual act, N.J.S.2C:24-4b(3);

· Selling or manufacturing child pornography, N.J.S. 2C:24:4b(5)(a);

· Knowingly promoting the prostitution of the actor’s child, N.J.S.2C:34-1b(4);

· Terrorism, section 2 of P.L.2002, c.26 (C.2C:38-2); and

· Producing or Possessing Chemical Weapons, Biological Agents or Nuclear or Radiological Devices, subsection a. of section 3 of P.L.2002, c.26 (C.2C:38-3);

Section 9 of the bill also creates an exception to the prohibition on expunging convictions for the sale or distribution of a controlled dangerous substance or possession thereof with intent to sell. The exception would apply if the convictions involve crimes of the third or fourth degree, and the court finds that expungement is consistent with the public interest, giving due consideration to the nature of the offense, and the petitioner’s character and conduct since conviction. Under current law, a person may not have their conviction for the sale or distribution of a controlled dangerous substance or possession thereof with intent to sell expunged unless it relates to the sale, distribution, or possession of a small amount of marijuana or hashish.

Section 9 also amends the provision concerning notification of the State Board of Medical Examiners upon receipt of a petition for expungement from a State licensed physician or podiatrist convicted of an offense involving drugs or alcohol to include a reference to a petition for sealing pursuant to this bill.

Section 10 of the bill changes the criteria for expunging a record of an adjudication of delinquency. Under current law, to expunge an adjudication of delinquency, a minimum of five years must elapse after final discharge of the person from legal custody or supervision or after the entry of any other court order not involving custody or supervision. Also, the person must not have been convicted of a crime, or a disorderly or petty disorderly persons offense, or adjudged a delinquent, or in need of supervision, during the five years prior to the filing of the petition for expungement. Section 10 of the bill would except periods of post-incarceration supervision pursuant to section 25 of P.L.1982, c.77 (C.2A:4A-44) from these five-year periods.

Section 11 of the bill amends N.J.S.2C:52-14 to require a court to determine whether the need for the availability of a person’s criminal record outweighs the desirability of freeing the person from the disabilities normally associated with a criminal conviction in cases of third and fourth degree drug offenses. This change is necessitated by section 9 of the bill, which authorizes expungement of third and fourth degree convictions for the sale or distribution of a controlled dangerous substance or possession thereof with intent to sell. Under current law, a court only weighs this consideration if an objection to the expungement is raised by a law enforcement official. Section 11 also includes an amendatory provision to differentiate between records sealed under an older process used before the adoption of chapter 52 of Title 2C of the New Jersey Statutes and records sealed pursuant to this bill.