A4794

An Act concerning expungement and amending N.J.S.2C:52-2.

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

1. 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 seeks to expunge such conviction may present a duly verified petition as provided in N.J.S.2C:52-7 to the Superior Court in the county in which the judgment of conviction was entered praying that such judgment of conviction and all records and information pertaining thereto be expunged if:

(1) the person has not been convicted of [any prior or subsequent] a crime, whether within this State or any other jurisdiction, prior or subsequent to the judgment of conviction and has not been adjudged a disorderly person or petty disorderly person on more than two occasions [may, after the expiration of]; and

(2) a period of 10 years has expired from the date of [his] the judgment of conviction, the person’s payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later [, present a duly verified petition as provided in N.J.S.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] this 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] this paragraph where the court finds:

[(1)] (a) 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)] (b) at least five years has expired from the date of [his] the judgment of conviction, the person’s 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 judgment of 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 subparagraph (a) of paragraph [(1)] (2) 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: N.J.S.2C:11-1 et seq. (Criminal Homicide), except death by auto as specified in N.J.S.2C:11-5; N.J.S.2C:13-1 (Kidnapping); section 1 of P.L.1993, c.291 (C.2C:13-6) (Luring or Enticing); section 1 of P.L.2005, c.77 (C.2C:13-8) (Human Trafficking); N.J.S.2C:14-2 (Sexual Assault or Aggravated Sexual Assault); [N.J.S.2C:14-3a] subsection a. of N.J.S.2C:14-3 (Aggravated Criminal Sexual Contact); if the victim is a minor, [N.J.S.2C:14-3b] subsection b. of N.J.S.2C:14-3 (Criminal Sexual Contact); if the victim is a minor and the offender is not the parent of the victim, N.J.S.2C:13-2 (Criminal Restraint) or N.J.S.2C:13-3 (False Imprisonment); N.J.S.2C:15-1 (Robbery); N.J.S.2C:17-1 (Arson and Related Offenses); [N.J.S.2C:24-4a.] subsection a. of N.J.S.2C:24-4 (Endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child, or causing the child other harm); [N.J.S.2C:24-4b(4)] paragraph (4) of subsection b. of N.J.S.2C:24-4 ([Endangering the welfare of] Photographing or filming a child in a prohibited sexual act); [N.J.S.2C:24-4b(3)] paragraph (3) of subsection b. of N.J.S.2C:24-4 (Causing or permitting a child to engage in a prohibited sexual act); [N.J.S.2C:24-4b.(5)(a)] subparagraph (a) of paragraph (5) of subsection b. of N.J.S.2C:24-4 (Distributing, possessing with intent to distribute or using a file-sharing program to store items depicting the sexual exploitation or abuse of a child); [N.J.S.2C:24-4b(5)(b)] subparagraph (b) of paragraph (5) of subsection b. of N.J.S.2C:24-4 (Possessing or viewing items depicting the sexual exploitation or abuse of a child); N.J.S.2C:28-1 (Perjury); N.J.S.2C:28-2 (False Swearing); [N.J.S.2C:34-1b(4)] paragraph (4) of subsection b. of N.J.S.2C:34-1 (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 involve:

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

(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.

(cf: P.L.2013, c.136, s.3)

2. This act shall take effect immediately.

STATEMENT

This bill would allow a defendant to apply for the expungement of more than one crime under certain circumstances. Currently, N.J.S.2C:52-2 provides that a person can apply to expunge the records of a criminal conviction if he “has not been convicted of any prior or subsequent crime” and has not been adjudged a disorderly person or petty disorderly person on more than two occasions, and if a period of 10 years has elapsed since the date of conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later.

In the consolidated cases In the Matter of the Expungement Petition of J.S. (A-84-13) and In the Matter of the Expungement of the Criminal Records of G.P.B. (A-2-14), 2015 N.J. LEXIS 821, decided on August 10, 2015, the New Jersey Supreme Court ruled that the “prior or subsequent crime” language barred expungement for two defendants who each had multiple convictions that were related and close in time. One defendant had sold small amounts of marijuana on two occasions, five days apart, and the other defendant had attempted to bribe several public officials over a 24-hour period. Each defendant argued that because his multiple crimes had occurred so close in time and were related, that they should be treated as if they were a single crime. The Supreme Court disagreed, ruled that the “prior or subsequent crime” language barred expungements for these multiple convictions.

Justice LaVecchia, dissenting from the court’s opinion, stated that the “prior or subsequent” language is unclear, because a single criminal transaction can give rise to multiple counts. She argued that “[t]he statute fairly may be read to permit the filing of an application of an application for expungement . . . when a person has not been convicted of a crime prior or subsequent to the judgment of conviction that he or she seeks to expunge. The judgment of conviction may contain multiple counts; however, on the day of conviction, the person has not been previously or subsequently convicted of another offense. He or she is a ‘one-time offender.’”

In accordance with Justice LaVecchia’s dissent, this bill would delete the “prior or subsequent crime” language. The bill would replace this language with a reference to a crime “prior or subsequent to the judgment of conviction” for the crime or crimes that the person seeks to expunge. Thus, under the bill, a person could apply to expunge multiple crimes, as long as those multiple crimes are all contained within a single judgment of conviction.