A5323

An Act concerning expungement, amending N.J.S.2C:35-14 and supplementing chapter 52 of the New Jersey Statutes.

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

1. N.J.S.2C:35-14 is amended to read as follows:

2C:35-14. Rehabilitation Program for Drug and Alcohol Dependent Persons Subject to a Presumption of Incarceration or a Mandatory Minimum Period of Parole Ineligibility; Criteria for Imposing Special Probation; Ineligible Offenders; Commitment to Residential Treatment Facilities or Participation in a Nonresidential Treatment Program; Presumption of Revocation; Brief Incarceration in Lieu of Permanent Revocation.

a. Any person who is ineligible for probation due to a conviction for a crime which is subject to a presumption of incarceration or a mandatory minimum period of parole ineligibility may be sentenced to a term of special probation in accordance with this section, and may not apply for drug and alcohol treatment pursuant to N.J.S.2C:45-1. Nothing in this section shall be construed to prohibit a person who is eligible for probation in accordance with N.J.S.2C:45-1 due to a conviction for an offense which is not subject to a presumption of incarceration or a mandatory minimum period of parole ineligibility from applying for drug or alcohol treatment as a condition of probation pursuant to N.J.S.2C:45-1; provided, however, that a person in need of treatment as defined in subsection f. of section 2 of P.L.2012, c.23 (C.2C:35-14.2) shall be sentenced in accordance with that section. Notwithstanding the presumption of incarceration pursuant to the provisions of subsection d. of N.J.S.2C:44-1, whenever a drug or alcohol dependent person who is subject to sentencing under this section is convicted of or adjudicated delinquent for an offense, other than one described in subsection b. of this section, the court, upon notice to the prosecutor, may, on motion of the person, or on the court's own motion, place the person on special probation, which shall be for a term of five years, provided that the court finds on the record that:

(1) the person has undergone a professional diagnostic assessment to determine whether and to what extent the person is drug or alcohol dependent and would benefit from treatment; and

(2) the person is a drug or alcohol dependent person within the meaning of N.J.S.2C:35-2 and was drug or alcohol dependent at the time of the commission of the present offense; and

(3) the present offense was committed while the person was under the influence of a controlled dangerous substance, controlled substance analog or alcohol or was committed to acquire property or monies in order to support the person's drug or alcohol dependency; and

(4) substance use disorders treatment and monitoring will serve to benefit the person by addressing the person's drug or alcohol dependency and will thereby reduce the likelihood that the person will thereafter commit another offense; and

(5) the person did not possess a firearm at the time of the present offense and did not possess a firearm at the time of any pending criminal charge; and

(6) the person has not been previously convicted on two or more separate occasions of crimes of the first or second degree, other than those listed in paragraph (7); or the person has not been previously convicted on two or more separate occasions, where one of the offenses is a crime of the third degree, other than crimes defined in N.J.S.2C:35-10, and one of the offenses is a crime of the first or second degree; and

(7) the person has not been previously convicted or adjudicated delinquent for, and does not have a pending charge of murder, aggravated manslaughter, manslaughter, kidnapping, aggravated assault, aggravated sexual assault or sexual assault, or a similar crime under the laws of any other state or the United States; and

(8) a suitable treatment facility licensed and approved by the Division of Mental Health and Addiction Services in the Department of Human Services is able and has agreed to provide appropriate treatment services in accordance with the requirements of this section; and

(9) no danger to the community will result from the person being placed on special probation pursuant to this section.

In determining whether to sentence the person pursuant to this section, the court shall consider all relevant circumstances, and shall take judicial notice of any evidence, testimony or information adduced at the trial, plea hearing or other court proceedings, and shall also consider the presentence report and the results of the professional diagnostic assessment to determine whether and to what extent the person is drug or alcohol dependent and would benefit from treatment. The court shall give priority to a person who has moved to be sentenced to special probation over a person who is being considered for a sentence to special probation on the court's own motion or in accordance with the provisions of section 2 of P.L.2012, c.23 (C.2C:35-14.2).

As a condition of special probation, the court shall order the person to enter a residential treatment program at a facility licensed and approved by the Division of Mental Health and Addiction Services in the Department of Human Services or a program of nonresidential treatment by a licensed and approved treatment provider, which program may include the use of medication-assisted treatment as defined in paragraph (7) of subsection f. of this section, to comply with program rules and the requirements of the course of treatment, to cooperate fully with the treatment provider, and to comply with such other reasonable terms and conditions as may be required by the court or by law, pursuant to N.J.S.2C:45-1, and which shall include periodic urine testing for drug or alcohol usage throughout the period of special probation. In determining whether to order the person to participate in a nonresidential rather than a residential treatment program, the court shall follow the procedure set forth in subsection j. of this section. Subject to the requirements of subsection d. of this section, the conditions of special probation may include different methods and levels of community-based or residential supervision.

b. A person shall not be eligible for special probation pursuant to this section if the person is convicted of or adjudicated delinquent for:

(1) a crime of the first degree;

(2) a crime of the first or second degree enumerated in subsection d. of section 2 of P.L.1997, c.117 (C.2C:43-7.2), other than a crime of the second degree involving N.J.S.2C:15-1 (robbery) or N.J.S.2C:18-2 (burglary);

(3) a crime, other than that defined in section 1 of P.L.1987, c.101 (C.2C:35-7), for which a mandatory minimum period of incarceration is prescribed under chapter 35 of this Title or any other law; or

(4) an offense that involved the distribution or the conspiracy or attempt to distribute a controlled dangerous substance or controlled substance analog to a juvenile near or on school property.

c. (Deleted by amendment, P.L.2012, c.23)

d. Except as otherwise provided in subsection j. of this section, a person convicted of or adjudicated delinquent for a crime of the second degree or of a violation of section 1 of P.L.1987, c.101 (C.2C:35-7), or who previously has been convicted of or adjudicated delinquent for an offense under subsection a. of N.J.S.2C:35-5 or a similar offense under any other law of this State, any other state or the United States, who is placed on special probation under this section shall be committed to the custody of a residential substance use disorders treatment facility licensed and approved by the Division of Mental Health and Addiction Services in the Department of Human Services. Subject to the authority of the court to temporarily suspend imposition of all or any portion of the term of commitment to a residential treatment facility pursuant to subsection j. of this section, the person shall be committed to the residential treatment facility immediately, unless the facility cannot accommodate the person, in which case the person shall be incarcerated to await commitment to the residential treatment facility. The term of such commitment shall be for a minimum of six months, or until the court, upon recommendation of the treatment provider, determines that the person has successfully completed the residential treatment program, whichever is later, except that no person shall remain in the custody of a residential treatment facility pursuant to this section for a period in excess of five years. Upon successful completion of the required residential treatment program, the person shall complete the period of special probation, as authorized by subsection a. of this section, with credit for time served for any imprisonment served as a condition of probation and credit for each day during which the person satisfactorily complied with the terms and conditions of special probation while committed pursuant to this section to a residential treatment facility. Except as otherwise provided in subsection l. of this section, the person shall not be eligible for early discharge of special probation pursuant to N.J.S.2C:45-2, or any other provision of the law. The court, in determining the number of credits for time spent in residential treatment, shall consider the recommendations of the treatment provider. A person placed into a residential treatment facility pursuant to this section shall be deemed to be subject to official detention for the purposes of N.J.S.2C:29-5 (escape).

e. The probation department or other appropriate agency designated by the court to monitor or supervise the person's special probation shall report periodically to the court as to the person's progress in treatment and compliance with court-imposed terms and conditions. The treatment provider shall promptly report to the probation department or other appropriate agency all significant failures by the person to comply with any court imposed term or condition of special probation or any requirements of the course of treatment, including but not limited to a positive drug or alcohol test, which shall only constitute a violation for a person using medication-assisted treatment as defined in paragraph (7) of subsection f. of this section if the positive test is unrelated to the person's medication-assisted treatment, or the unexcused failure to attend any session or activity, and shall immediately report any act that would constitute an escape. The probation department or other appropriate agency shall immediately notify the court and the prosecutor in the event that the person refuses to submit to a periodic drug or alcohol test or for any reason terminates the person's participation in the course of treatment, or commits any act that would constitute an escape.

f. (1) Upon a first violation of any term or condition of the special probation authorized by this section or of any requirements of the course of treatment, the court in its discretion may permanently revoke the person's special probation.

(2) Upon a second or subsequent violation of any term or condition of the special probation authorized by this section or of any requirements of the course of treatment, the court shall, subject only to the provisions of subsection g. of this section, permanently revoke the person's special probation unless the court finds on the record that there is a substantial likelihood that the person will successfully complete the treatment program if permitted to continue on special probation, and the court is clearly convinced, considering the nature and seriousness of the violations, that no danger to the community will result from permitting the person to continue on special probation pursuant to this section. The court's determination to permit the person to continue on special probation following a second or subsequent violation pursuant to this paragraph may be appealed by the prosecution.

(3) In making its determination whether to revoke special probation, and whether to overcome the presumption of revocation established in paragraph (2) of this subsection, the court shall consider the nature and seriousness of the present infraction and any past infractions in relation to the person's overall progress in the course of treatment, and shall also consider the recommendations of the treatment provider. The court shall give added weight to the treatment provider's recommendation that the person's special probation be permanently revoked, or to the treatment provider's opinion that the person is not amenable to treatment or is not likely to complete the treatment program successfully.

(4) If the court permanently revokes the person's special probation pursuant to this subsection, the court shall impose any sentence that might have been imposed, or that would have been required to be imposed, originally for the offense for which the person was convicted or adjudicated delinquent. The court shall conduct a de novo review of any aggravating and mitigating factors present at the time of both original sentencing and resentencing. If the court determines or is required pursuant to any other provision of this chapter or any other law to impose a term of imprisonment, the person shall receive credit for any time served in custody pursuant to N.J.S.2C:45-1 or while awaiting placement in a treatment facility pursuant to this section, and for each day during which the person satisfactorily complied with the terms and conditions of special probation while committed pursuant to this section to a residential treatment facility. The court, in determining the number of credits for time spent in a residential treatment facility, shall consider the recommendations of the treatment provider.

(5) Following a violation, if the court permits the person to continue on special probation pursuant to this section, the court shall order the person to comply with such additional terms and conditions, including but not limited to more frequent drug or alcohol testing, as are necessary to deter and promptly detect any further violation.

(6) Notwithstanding any other provision of this subsection, if the person at any time refuses to undergo urine testing for drug or alcohol usage as provided in subsection a. of this section, the court shall, subject only to the provisions of subsection g. of this section, permanently revoke the person's special probation. Notwithstanding any other provision of this section, if the person at any time while committed to the custody of a residential treatment facility pursuant to this section commits an act that would constitute an escape, the court shall forthwith permanently revoke the person's special probation.

(7) An action for a violation under this section may be brought by a probation officer or prosecutor or on the court's own motion. Failure to complete successfully the required treatment program shall constitute a violation of the person's special probation. In the case of the temporary or continued management of a person's drug or alcohol dependency by means of medication-assisted treatment as defined herein, whenever supported by a report from the treatment provider of existing satisfactory progress and reasonably predictable long-term success with or without further medication-assisted treatment, the person's use of the medication-assisted treatment, even if continuing, shall not be the basis to constitute a failure to complete successfully the treatment program. A person who fails to comply with the terms of the person's special probation pursuant to this section and is thereafter sentenced to imprisonment in accordance with this subsection shall thereafter be ineligible for entry into the Intensive Supervision Program, provided however that this provision shall not affect the person's eligibility for entry into the Intensive Supervision Program for a subsequent conviction.

As used in this section, the term "medication-assisted treatment" means the use of any medications approved by the federal Food and Drug Administration to treat substance use disorders, including extended-release naltrexone, methadone, and buprenorphine, in combination with counseling and behavioral therapies, to provide a whole-patient approach to the treatment of substance use disorders.

g. When a person on special probation is subject to a presumption of revocation on a second or subsequent violation pursuant to paragraph (2) of subsection f. of this section, or when the person refuses to undergo drug or alcohol testing pursuant to paragraph (6) of subsection f. of this section, the court may, in lieu of permanently revoking the person's special probation, impose a term of incarceration for a period of not less than 30 days nor more than six months, after which the person's term of special probation pursuant to this section may be reinstated. In determining whether to order a period of incarceration in lieu of permanent revocation pursuant to this subsection, the court shall consider the recommendations of the treatment provider with respect to the likelihood that such confinement would serve to motivate the person to make satisfactory progress in treatment once special probation is reinstated. This disposition may occur only once with respect to any person unless the court is clearly convinced that there are compelling and extraordinary reasons to justify reimposing this disposition with respect to the person. Any such determination by the court to reimpose this disposition may be appealed by the prosecution. Nothing in this subsection shall be construed to limit the authority of the court at any time during the period of special probation to order a person on special probation who is not subject to a presumption of revocation pursuant to paragraph (2) of subsection f. of this section to be incarcerated over the course of a weekend, or for any other reasonable period of time, when the court in its discretion determines that such incarceration would help to motivate the person to make satisfactory progress in treatment.

h. The court, as a condition of its order, and after considering the person's financial resources, shall require the person to pay that portion of the costs associated with the person's participation in any residential or nonresidential treatment program imposed pursuant to this section which, in the opinion of the court, is consistent with the person's ability to pay, taking into account the court's authority to order payment or reimbursement to be made over time and in installments.

i. The court shall impose, as a condition of the special probation, any fine, penalty, fee or restitution applicable to the offense for which the person was convicted or adjudicated delinquent.

j. Where the court finds that a person has satisfied all of the eligibility criteria for special probation and would otherwise be required to be committed to the custody of a residential substance use disorders treatment facility pursuant to the provisions of subsection d. of this section, the court may temporarily suspend imposition of all or any portion of the term of commitment to a residential treatment facility and may instead order the person to enter a nonresidential treatment program, provided that the court finds on the record that:

(1) the person conducting the diagnostic assessment required pursuant to paragraph (1) of subsection a. of this section has recommended in writing that the proposed course of nonresidential treatment services is clinically appropriate and adequate to address the person's treatment needs; and

(2) no danger to the community would result from the person participating in the proposed course of nonresidential treatment services; and

(3) a suitable treatment provider is able and has agreed to provide clinically appropriate nonresidential treatment services.

If the prosecutor objects to the court's decision to suspend the commitment of the person to a residential treatment facility pursuant to this subsection, the sentence of special probation imposed pursuant to this section shall not become final for ten days in order to permit the appeal by the prosecution of the court's decision.

After a period of six months of nonresidential treatment, if the court, considering all available information including but not limited to the recommendation of the treatment provider, finds that the person has made satisfactory progress in treatment and that there is a substantial likelihood that the person will successfully complete the nonresidential treatment program and period of special probation, the court, on notice to the prosecutor, may permanently suspend the commitment of the person to the custody of a residential treatment program, in which event the special monitoring provisions set forth in subsection k. of this section shall no longer apply.

Nothing in this subsection shall be construed to limit the authority of the court at any time during the term of special probation to order the person to be committed to a residential or nonresidential treatment facility if the court determines that such treatment is clinically appropriate and necessary to address the person's present treatment needs.

k. (1) When the court temporarily suspends the commitment of the person to a residential treatment facility pursuant to subsection j. of this section, the court shall, in addition to ordering participation in a prescribed course of nonresidential treatment and any other appropriate terms or conditions authorized or required by law, order the person to undergo urine testing for drug or alcohol use not less than once per week unless otherwise ordered by the court. The court-ordered testing shall be conducted by the probation department or the treatment provider. The results of all tests shall be reported promptly to the court and to the prosecutor. If the person is involved with a program that is providing the person medication-assisted treatment as defined in paragraph (7) of subsection f. of this section, only a positive urine test for drug or alcohol use unrelated to the medication-assisted treatment shall constitute a violation of the terms and conditions of special probation. In addition, the court shall impose appropriate curfews or other restrictions on the person's movements, and may order the person to wear electronic monitoring devices to enforce such curfews or other restrictions as a condition of special probation.

(2) The probation department or other appropriate agency shall immediately notify the court and the prosecutor in the event that the person fails or refuses to submit to a drug or alcohol test, knowingly defrauds the administration of a drug test, terminates the person's participation in the course of treatment, or commits any act that would constitute absconding from parole. If the person at any time while entered in a nonresidential treatment program pursuant to subsection j. of this section knowingly defrauds the administration of a drug test, goes into hiding, or leaves the State with a purpose of avoiding supervision, the court shall permanently revoke the person's special probation.

l. If the court finds that the person has made exemplary progress in the course of treatment, the court may, upon recommendation of the person's supervising probation officer or on the court's own motion, and upon notice to the prosecutor, grant early discharge from a term of special probation provided that the person: (1) has satisfactorily completed the treatment program ordered by the court; (2) has served at least two years of special probation; (3) within the preceding 12 months, did not commit a substantial violation of any term or condition of special probation, including but not limited to a positive urine test, which shall only constitute a violation for a person using medication-assisted treatment as defined in paragraph (7) of subsection f. of this section if the positive test is unrelated to the person's medication-assisted treatment; and (4) is not likely to relapse or commit an offense if probation supervision and related services are discontinued.

m. (1) [The] Notwithstanding the provisions of any other law to the contrary, the Superior Court may order the expungement of all records and information relating to all prior arrests, detentions, convictions, and proceedings, for any offense enumerated in Title 2C of the New Jersey Statutes [upon] at the time of [successful] discharge upon graduation from a term of special probation as provided in this section, regardless of whether the person was sentenced to special probation under this section, section 2 of P.L.2012, c.23 (C.2C:35-14.2), or N.J.S.2C:45-1, if the person satisfactorily completed a substance abuse treatment program as ordered by the court [and], was not convicted of any crime[, or adjudged a disorderly person or petty disorderly person], disorderly persons offense, or petty disorderly persons offense that was committed during the term of special probation, and does not have a pending criminal charge, disorderly persons charge, or petty disorderly persons charge for an offense committed during the term of special probation.

If the person has an outstanding balance on a fine when the court considers the application for expungement, the court may grant the expungement if the court provides for the continued collection of any outstanding fine through the comprehensive enforcement program established pursuant to P.L.1995, c.9 (C.2B:19-1 et seq.) or enters a civil judgment for the outstanding fine in accordance with paragraph 2 of subsection n. of this section. For the purposes of this subsection, “fine” means and includes any fine, restitution, and other court-ordered financial assessment imposed by the court as part of the sentence for the conviction, for which payment of restitution takes precedence in accordance with chapter 46 of Title 2C of the New Jersey Statutes.

[The] Unless otherwise provided in this subsection, the expungement eligibility provisions of N.J.S.2C:52-2 through section 1 of P.L.1980, c.163 (C.2C:52-4.1) and the expungement application provisions of N.J.S.2C:52-7 through N.J.S.2C:52-14 shall not apply to an expungement application brought pursuant to [this] paragraph 1 of subsection m. of this section. [and no] No fee shall be charged to a person [eligible for relief] applying for expungement pursuant to this paragraph. The court shall grant the relief requested unless it finds that the need for the availability of the records outweighs the desirability of having the person freed from any disabilities associated with their availability, or it finds that the person is otherwise ineligible for expungement pursuant to paragraph (2) of this subsection. An expungement under this paragraph shall proceed in accordance with rules and procedures developed by the Supreme Court.

(2) A person shall not be eligible for expungement under paragraph (1) of this subsection if the records include a conviction for any offense barred from expungement pursuant to subsection b. or c. of N.J.S.2C:52-2. It shall be the obligation of the prosecutor to notify the court of any disqualifying convictions, pending charges for a crime, disorderly persons, or petty disorderly persons offense, or any other factors related to public safety or the public interest that may be served by maintaining the availability of the records [that] which should be considered by the court when deciding whether to grant an expungement under paragraph (1) of this subsection.

(3) The Superior Court shall provide a copy of the expungement order granted pursuant to paragraph (1) of this subsection to the prosecutor and to the person and, if the person was represented by the Public Defender, to the Public Defender. The person or, if the person was represented by the Public Defender, the Public Defender on behalf of the person, shall promptly distribute copies of the expungement order to appropriate agencies who have custody and control of the records specified in the order so that the agencies may comply with the requirements of N.J.S.2C:52-15.

(4) If the person whose records are expunged pursuant to paragraph (1) of this subsection is convicted of any crime following discharge from special probation, the full record of arrests and convictions may be restored to public access and no future expungement shall be granted to such person.

(5) A person who, prior to the effective date of P.L.2015, c.261, was [successfully] discharged upon graduation from a term of special probation as provided in this section, regardless of whether the person was sentenced to special probation under this section, section 2 of P.L.2012, c.23 (C.2C:35-14.2), or N.J.S.2C:45-1, may seek an expungement of all records and information relating to all arrests, detentions, convictions, and proceedings for any offense enumerated in Title 2C of the New Jersey Statutes that existed at the time of discharge from special probation by presenting an application to the Superior Court in the county in which the person was sentenced to special probation, which contains a duly verified petition as provided in N.J.S.2C:52-7 for each crime or offense sought to be expunged. The petition for expungement shall proceed pursuant to N.J.S.2C:52-1 et seq. except that the eligibility requirements [related to the expiration of the time periods] specified in N.J.S.2C:52-2 through section 1 of P.L.1980, c.163 (C.2C:52-4.1) shall not apply. A person eligible to seek expungement pursuant to this paragraph who was convicted of any offense barred from expungement pursuant to subsection b. or c. of N.J.S.2C:52-2, or who has been convicted of any crime or adjudged a disorderly person or petty disorderly person for an offense committed during the term of special probation or who has been convicted of a crime or adjudged a disorderly person or petty disorderly person since the date of discharge upon graduation from special probation shall not be eligible to apply for an expungement under this paragraph. In addition, no application for expungement pursuant to this paragraph shall be considered until any pending charges for a crime, disorderly persons offense or petty disorderly persons offense are disposed. It shall be the obligation of the prosecutor to notify the court of any disqualifying convictions, pending charges for a crime, disorderly persons offense, or petty disorderly persons offense or any other factors related to public safety or the public interest that may be served by maintaining the availability of the records [that] which should be considered by the court when deciding whether to grant an expungement under this paragraph. The Superior Court shall consider the person's verified petition and may order the expungement of all records and information relating to all arrests, detentions, convictions, and proceedings of the person that existed at the time of discharge from special probation as appropriate. The court shall grant the relief requested unless it finds that the need for the availability of the records outweighs the desirability of having the person freed from any disabilities associated with their availability, or it finds that the person is otherwise ineligible for expungement pursuant to this paragraph. No fee shall be charged to a person [eligible for relief] applying for expungement pursuant to this paragraph.

n. (1) Records of the Probation Division of the Superior Court related to a court-ordered financial assessment that remains due at the time the court grants an expungement may be retained as confidential, restricted-access records in the Judiciary’s automated system to facilitate the collection and distribution of any outstanding court-ordered financial assessment by the comprehensive enforcement program established pursuant to P.L.1995, c.9 (C.2B:19-1 et al.) as ordered by the court. The Administrative Director of the Courts shall ensure that such records are not released to the public. Such records shall be removed from the Judiciary’s automated system upon satisfaction of the court-ordered financial assessment or by order of the court.

(2) The court, after providing appropriate due process, may nullify an expungement granted pursuant to this paragraph and restore to public access the full record of arrests and convictions if the person willfully fails to comply with an established payment plan or to otherwise cooperate with the comprehensive enforcement program to facilitate the collection of any outstanding restitution, fines, and other court-ordered assessments, provided that prior to nullifying the expungement the person shall be afforded an opportunity to comply with or restructure the payment plan, or to otherwise cooperate in facilitating the collection of the outstanding restitution, fines, and other court-ordered assessments. If the court nullifies the expungement pursuant to this subparagraph and the person subsequently complies with the payment plan or otherwise cooperates in facilitating the collection of any outstanding restitution, fines, and other court-ordered assessments, the court in its discretion may restore the expungement.

(3) Notwithstanding the provisions of any other law to the contrary, expunged records may be used by the comprehensive enforcement program established pursuant to P.L.1995, c.9 (C.2B:19-1 et al.) to collect restitution, fines, and other court-ordered financial obligations that remain due at the time an expungement is granted by the court. Information regarding the nature of such financial assessments or their derivation from expunged criminal convictions shall not be disclosed to the public. Any record of a civil judgment for the unpaid portion of court-ordered financial assessments that may be docketed after the court has granted an expungement of the underlying criminal conviction shall be entered in the name of the Treasurer, State of New Jersey. The State Treasurer shall thereafter administer such judgments in cooperation with the comprehensive enforcement program without disclosure of any information related to the underlying criminal nature of the assessments.

(cf: P.L.2015, c.261, s.1)

2. 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 convicted of a disorderly persons or petty disorderly persons offense on more than two occasions may, after the expiration of a period of 10 years from the date of his most recent conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration for that crime or for any disorderly persons or petty disorderly persons offense, whichever is later, present an expungement application to the Superior Court in the county in which the conviction for the crime was adjudged, which contains a duly verified petition as provided in N.J.S.2C:52-7 for the criminal conviction sought to be expunged, and may also contain additional duly verified petitions for no more than two convictions for any disorderly persons or petty disorderly persons offenses, praying that the conviction, or convictions if applicable, and all records and information pertaining thereto be expunged. The petition for each conviction appended to an application shall comply with the requirements set forth in N.J.S.2C:52-1 et seq.

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:

(1) less than 10 years has expired from the satisfaction of a fine, but the ten-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) at least five years has expired from the date of his conviction, 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 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 paragraph (1) 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 persons 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 and strict liability vehicular homicide as specified in section 1 of P.L.2017, c.165 (C.2C:11-5.3); 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); subsection a. of N.J.S.2C:14-3 (Aggravated Criminal Sexual Contact); if the victim is a minor, 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); 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); paragraph (4) of subsection b. of N.J.S.2C:24-4 (Photographing or filming a child in a prohibited sexual act or for portrayal in a sexually suggestive manner); paragraph (3) of subsection b. of N.J.S.2C:24-4 (Causing or permitting a child to engage in a prohibited sexual act or the simulation of an act, or to be portrayed in a sexually suggestive manner); 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); 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); section 8 of P.L.2017, c.141 (C.2C:24-4.1) (Leader of a child pornography network); N.J.S.2C:28-1 (Perjury); N.J.S.2C:28-2 (False Swearing); 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. It shall be presumed that expungement is consistent with the public interest if the person seeking expungement has been discharged upon graduation from a term of special probation as provided in N.J.S.2C:35-14.

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.2017, c.165, s.9)

3. (New section) The expungement of records and information relating to all prior arrests, detentions, convictions, and proceedings for any offense enumerated in Title 2C of the New Jersey Statutes for a person successfully discharged from a term of special probation under N.J.S.2C:35-14 shall be administered in accordance with the provisions of subsections m. and n. of N.J.S.2C:35-14. The provisions of N.J.S.2C:52-1 et seq. shall apply to an expungement brought pursuant to subsections m. and n. of N.J.S.2C:35-14 unless otherwise provided in those subsections.

4. This act shall take effect immediately.

STATEMENT

This bill would clarify statutory provisions concerning the expungement of certain criminal records. Under P.L.2015, c.261, which amended several sections of the Criminal Code, persons who successfully complete drug court may expunge their entire criminal record, except for crimes statutorily barred from expungement. In In re Expungement of the Arrest/Charge Records of T.B., 451 N.J. Super. 391 (App. Div. 2017), the Appellate Division held that drug court graduates convicted of crimes of the third or fourth degree for the sale or distribution of a controlled dangerous substance are not eligible for expungement under the statute unless they make a showing that expungement is “consistent with the public interest.” This bill would allow expungement in these cases without a mandatory “public interest” showing.

Under the provisions of N.J.S.2C:52-2, expungement of certain serious crimes (murder, kidnapping, sexual assault, child pornography and others) is denied in all cases, including for those drug court graduates who would otherwise be eligible for expungement of their entire criminal record pursuant to P.L.2015, c.261. For crimes of the third or fourth degree involving the sale or distribution of a controlled dangerous substance, expungement may be granted, but only if 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 the bill, if a person convicted of crimes of the third or fourth degree involving the sale or distribution of a controlled dangerous substance has graduated from the drug court program, there would be a presumption that expungement of the person’s entire criminal record is consistent with the public interest. This presumption would only apply to persons who have graduated drug court; for other persons convicted of these crimes who seek expungement, the court would still be required in all cases to find that expungement is consistent with the public interest.

The bill also clarifies general statutory provisions concerning expungement eligibility for drug court graduates. The bill specifies that, notwithstanding the provisions of any other law to the contrary, the Superior Court may order the expungement of all records and information relating to all prior arrests, detentions, convictions, and proceedings, for any offense enumerated in Title 2C of the New Jersey Statutes at the time of discharge upon graduation from a term of special probation (drug court), if the person satisfactorily completed a substance abuse treatment program as ordered by the court, was not convicted of any crime, disorderly persons offense, or petty disorderly persons offense that was committed during the term of special probation, and does not have a pending criminal charge, disorderly persons charge, or petty disorderly persons charge for an offense committed during the term of special probation.

Under the bill, if the person has an outstanding balance on a fine when the court considers the application for expungement, the court may grant the expungement if the court provides for the continued collection of any outstanding fine through the comprehensive enforcement program established pursuant to P.L.1995, c.9 (C.2B:19-1 et seq.) or enters a civil judgment for the outstanding fine. The bill defines “fine” for these purposes as any fine, restitution, and other court-ordered financial assessment imposed by the court as part of the sentence for the conviction, for which payment of restitution takes precedence in accordance with chapter 46 of Title 2C of the New Jersey Statutes.

The bill provides that, unless otherwise provided in subsection m. of N.J.S.2C:35-14, the expungement eligibility provisions and the expungement application provisions of chapter 52 of Title 2C of the New Jersey Statutes would not apply to an expungement application by a drug court graduate. No fee would be charged for such an expungement.

The bill clarifies that a drug court graduate would not be eligible for expungement if the records include a conviction for any offense barred from expungement in all cases, as set out in subsection b. of N.J.S.2C:52-2.

The bill also expands a requirement concerning notification to the court by the prosecutor. Under the current statute, the prosecutor is required to notify the court of any disqualifying convictions or any other factors related to public safety. This bill provides that the prosecutor would also be required to notify the court of any pending charges for a crime, disorderly persons, or petty disorderly persons offense, or any other factors related to the public interest which may be served by maintaining the availability of the records.

The bill further provides that records of the Probation Division of the Superior Court related to a court-ordered financial assessment that remains due at the time the court grants an expungement may be retained as confidential, restricted-access records in the Judiciary’s automated system to facilitate the collection and distribution of any outstanding court-ordered financial assessment by the comprehensive enforcement program established pursuant to P.L.1995, c.9 (C.2B:19-1 et al.) as ordered by the court. The Administrative Director of the Courts would ensure that such records are not released to the public. Such records would be removed from the Judiciary’s automated system upon satisfaction of the court-ordered financial assessment or by order of the court.

Under the bill, the court, after providing appropriate due process, may nullify an expungement granted to a drug court graduate and restore to public access the full record of arrests and convictions if the person willfully fails to comply with an established payment plan or to otherwise cooperate with the comprehensive enforcement program to facilitate the collection of any outstanding restitution, fines, and other court-ordered assessments, provided that prior to nullifying the expungement the person would be afforded an opportunity to comply with or restructure the payment plan, or to otherwise cooperate in facilitating the collection of the outstanding restitution, fines, and other court-ordered assessments. If the court nullifies the expungement and the person subsequently complies with the payment plan or otherwise cooperates in facilitating the collection of any outstanding restitution, fines, and other court-ordered assessments, the court in its discretion may restore the expungement.

The bill provides that, notwithstanding the provisions of any other law to the contrary, expunged records may be used by the comprehensive enforcement program to collect restitution, fines, and other court-ordered financial obligations that remain due at the time an expungement is granted by the court. Information regarding the nature of such financial assessments or their derivation from expunged criminal convictions would not be disclosed to the public. Any record of a civil judgment for the unpaid portion of court-ordered financial assessments that may be docketed after the court has granted an expungement of the underlying criminal conviction would be entered in the name of the Treasurer, State of New Jersey. The State Treasurer would thereafter administer such judgments in cooperation with the comprehensive enforcement program without disclosure of any information related to the underlying criminal nature of the assessments.

Finally, the bill sets out a supplementary section providing that the expungement of records and information relating to all prior arrests, detentions, convictions, and proceedings for any offense enumerated in Title 2C of the New Jersey Statutes for a person successfully discharged from a term of special probation under N.J.S.2C:35-14 would be administered in accordance with the provisions of subsections m. and n. of N.J.S.2C:35-14, which would be added by the bill. This section of the bill provides that the provisions of N.J.S.2C:52-1 et seq. (the expungement statutes) would apply to an expungement brought pursuant to subsections m. and n. of N.J.S.2C:35-14 unless otherwise provided in those subsections.