by Marc Leibman
A criminal conviction, even if it does not result in a prison or jail sentence, can have life-altering consequences for a client. Besides the typical ancillary penalties, such as losing the right to possess a weapon, a ‘convict’ is often branded for life. Persons with criminal records face significant obstacles in trying to obtain professional licenses and may be barred from working in regulated industries, such the casino or liquor business.
How does someone explain to the State Board of Real Estate Appraisers, State Board of Accountancy, New Jersey Board of Bar Examiners, State Board of Professional Engineers and Land Surveyors or any of the other regulated professions that their conviction was a mistake of youth or arose from a misunderstanding? In a day when any employer can obtain a background check for a prospective employee, and when even Little League coaches and scout leaders are subjected to investigation, a criminal conviction, no matter how old, can create real problems and/or serious embarrassment.
Anyone who has ever observed a family court child support enforcement calendar can recount the endless line of litigants who complain that they cannot obtain employment because of their criminal history. These complaints have finally been heard. On Jan. 10, 2010, the New Jersey Assembly approved an amendment to the Expungement Law.1 On Jan. 28, 2010, the Assembly Judiciary Committee endorsed the changes with minor modification. The final version of the law, signed by then-Governor Jon Corzine on Jan. 12, 2010, has eased the requirements to obtain an expungement and created an opportunity for lawyers to provide valuable expungement services to their clients.
Under the old law,2 a defendant who had paid their fine and gone 10 years from the date he or she completed probation or parole would be entitled to an order of expungement, provided he or she did not sustain another felony conviction (or more than two disorderly persons offenses). Under the new law a court may grant an expungement order if:
1. five years has passed since the date of conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration (whichever is later); and
2. the person has not since been convicted of any crime disorderly persons offense or petty disorderly persons offense; and
3. so long as the defendant (called a petitioner in the expungement application) can persuade the court that the expungement “is in the public interest, giving due consideration to the nature of the offense, and the applicant’s character and conduct since conviction.”
Under the old statute, no expungement could be granted until 10 years passed from the date the fine was paid. That meant that if a defendant didn’t pay off his or her fines until after getting out of prison and finishing parole, he or she would still have to wait 10 years from the date the fines were finally paid. If fines remained outstanding, an expungement would not be granted.
The amendment now permits a petitioner to obtain an expungement if he or she has been unable to pay the fines due to “compelling reasons,” which include: the amount of the fine, the petitioner’s age at the time of the offense, the petitioner’s financial condition and other relevant circumstances regarding the petitioner’s ability to pay. This change in the law makes perfect sense. People often cannot obtain employment to earn money to pay fines as a result of their criminal records. Now these individuals will be able to expunge their conviction, obtain employment and hopefully pay their fines.
Of striking importance in the amendment is that the expungement statute now permits the expungement of any third- or fourth-degree controlled dangerous substance offense- 32 NEW JERSEY LAWYER | June 2010 WWW.NJSBA.COM NEW JERSEY WWW.NJSBA.COM LAWYER | June 2010 33 es “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.” Previously, convictions for the sale or distribution of a controlled dangerous substance were ineligible for expungement unless the conviction was for either 25 grams or less of marijuana or less than five grams of hashish.3
Expungements of disorderly persons offenses were unaffected by the amendment, and still require a five-year waiting period.4 Similarly, the requirement for a two-year waiting period for the expungement of municipal ordinance violations remains in place. There is, of course, no waiting period for charges that have been dismissed, or where the defendant has been acquitted.5sup>Additionally, the previously existing prohibition on applying for an expungement until six months has passed, since the conclusion of pre-trial intervention or satisfaction of a conditional discharge under N.J.S. 2C:36 remains in place.6
The list of offenses for which an expungement may not be granted was expanded as part of the amendment to the statute. Those convictions not subject to expungement now include: human trafficking; causing or permitting a child to engage in a prohibited sexual act; selling or manufacturing child pornography; knowingly promoting prostitution of the actor’s child; terrorism; and producing or possessing chemical weapons, biological agents or nuclear or radiological devices. Those ineligible offenses are in addition to: criminal homicide (except death by auto); kidnapping; aggravated sexual assault; aggravated criminal sexual contact; criminal restraint; false imprisonment; robbery; arson and related offenses; endangering the welfare of a child by engaging in sexual conduct that would impair or debauch the morals of the child; endangering the welfare of a child; perjury and conspiracies; or attempts to commit the foregoing crimes.
Also ineligible for expungement are those crimes committed by public office holders or employees where the offense involved or touched on their position. 7
Additionally, the amendment now provides that a petition for expungement may be denied by the court if it concludes, sua sponte, that 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 fourthdegree drug offenses. Previously this could only be grounds for denial if an objection was filed by a party who was given notice of the petition.
Federal offenses are generally not expugnable, with two notable exceptions: 1) violations under 21 U.S.C. 844a(j) for civil violations arising from possession of personal use quantities of drugs for personal use in a quantity no greater than that specified by the attorney general; and 2) under 18 U.S.C. 3607(c) an offender can expunge a misdemeanor conviction for simple possession in violation of 18 U.S.C. 844, but only if the offender was under the age of 21 at the time of the offense. To see the details on how to perform such an expungement, see 28 C.F.R. 76.41.
The first step in obtaining an order for expungement is to ascertain from the client his or her complete criminal history. The client’s petition and affidavit must be complete and accurate.8 The failure to include an old arrest will result in a denial, and will require the petition to be re-filed. When a client cannot remember the details of an offense or the exact sentence imposed, it is best to obtain a copy of the disposition from the municipal court or judgment of conviction from the superior court where the matter was handled.
The required documents include a petition for expungement supported by a sworn affidavit, accompanied by a proposed order of hearing and a proposed final order for expungement, which must be submitted with the filing fee to the clerk of the superior court. The petition should be filed in the county where the offense(s) occurred. In situations where expungement is sought for multiple incidents in different counties, the action may be consolidated in one county.9
In addition, the names and addresses of all of the law enforcement authorities who are entitled to notice of the client’s petition for expungement must be ascertained. Each county will provide its own list of authorities to be notified. In general, the following must be given notice of the petition for expungement: the New Jersey State Police, New Jersey attorney general, municipal police department, county prosecutor, municipal court clerk, county probation division, county criminal case management office and county and/or state identification bureau (if the client was fingerprinted).
These notifications must be made prior to the hearing on the petition for expungement. Proof of service upon the aforementioned authorities is required. Generally, the green U.S. Postal Service return receipt cards evidencing service will suffice.
Every offense that is eligible to be expunged should be expunged, and it should be completed at the earliest opportunity. Most clients do not know when they will be subject to a background investigation. The ability to expunge an offense should be part and parcel of plea bargaining consideration whenever possible. It is common for clients who have been advised of their eligibility date for expungement to initiate contact and return for this service when the permissible date to file the petition for expungement approaches. The practitioner may forget this date, but it is unlikely the client will.
Finally you should remember, and clients should be aware, that just because 34 NEW JERSEY LAWYER | June 2010 WWW.NJSBA.COM a matter is expunged it may still be in the public view, for example in newspaper articles and Internet postings. Only the ‘official record’ is sealed; it is not destroyed. The expungement order does not affect previously published newspaper articles or Internet posts about a client’s arrest or conviction.
As set forth in the statute:
[E]xpungement shall mean the extraction and isolation of all records within the court, detention or correctional facility, law enforcement or criminal justice agency concerning a person’s detection, apprehension, arrest, detention, trial or disposition of all offenses within the criminal justice system. N.J.S. 2C:52-1(a)
Endnotes
- 1. N.J.S. 2C:52-1 et seq. 2. N.J.S. 2C:52-2. 3. N.J.S. 2C:52-5. 4. N.J.S. 2C:52-3. 5. N.J.S. 2C:52-6(a). 6. N.J.S. 2C:52-6(b). 7. N.J.S. 2C:52-2(b). 8. State v. DeMarco, 174 N.J. Super. 411 (Law Div. 1980) and N.J.S. 2C:52-7. 9. In the Matter of J.N.G. a/k/a N.G., 244 N.J. Super. 605, 610, (App. Div. 1990) finding that venue may be relaxed in expungement petitions.
Marc Leibman is a partner with Kaufman, Semeraro, Bern, Deutsch & Leibman, LLP in Fort Lee, where he concentrates his practice on federal and state criminal defense.
