Law firm obtains Expungement for Indictable Offense

April 1, 2018

 … and then files Second Expungement for a Borough Ordinance

The 2016 Amendments to the Expungement Statutes created an interesting issue that is just now being addressed. Prior to 2016, if an expungement was granted for an Indictable Criminal Offense (a felony), no other convictions of any type could be expunged. The 2016 Amendments permitted the Expungement of the Indictable Offense and up to two Disorderly Persons of Petty Disorderly Persons Offenses. However, the Legislature did not mention convictions for Borough Ordinances in this section. The probably unintended result of this is that Disorderly Persons Offense convictions can be expunged along with an Indictable Offense while a Municipal Ordinance conviction cannot.

The history of this expungement is as follows. In October of 2016 the Petitioner applied for a Public Interest Expungement after being convicted of N.J.S.A. 2C:35-5B(12), Manufacturing, Distributing or Dispensing Marijuana, in September of 1994. According to N.J.S.A. 2C:52-2(c)(3)c. In the case of conviction for the sale or distribution of a controlled dangerous substance or possession thereof with the intent to sell, expungement shall be denied except where the crimes relate to involve:…

(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.

The Petitioner’s expungement order included five other charges that were dismissed and one conviction in violation of a Borough Ordinance. The firm submitted a legal brief and character reference letters as is required and the Judge granted the special expungement. The firm was able to show how the petitioner has changed his life since his conviction. The law firm also explained how the Petitioner would not be able to apply for a state licence with his criminal conviction.

The Monmouth County Prosecutor’s office filed an objection is to the expungement of the conviction for the Borough Ordinance. N.J.S.A. 2C:52-2A states that 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. Since there is no mention of the convictions for a Borough Ordinance, the Prosecutor interpreted the statue as not permitting the expungement of these convictions.

In our opinion, this objection makes no sense as the amended statute permits the expungement of the more serious disorderly persons offenses along with an Indictable, but, does not permit the expungement of a minor Borough Ordinance offense. This appears to be simply an oversight on the part of the Legislature when it amended the statute, but, the Prosecutor was technically correct in the objection. Therefore, we removed the Borough Ordinance conviction in the proposed Order and the Judge signed the Order expunging the Petitioners Indictable Conviction and Disorderly Person Offenses dismissals.

Our client reached out to our office and told us that the Borough Ordinance conviction was interfering with his employment opportunities and asking if we could do anything about it. We determined that under the 2016 Amendments to the Expungement Statute, it would arguably possible to file a Second Expungement solely on the remaining Borough Ordinance conviction. N.J.S.A. 2C:52-14E states that a person is not eligible for an expungement if, “A person has had a previous criminal conviction expunged regardless of the lapse of time between the prior expungement, or sealing under prior law, 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.

On June 5, 2017 our office filed a second expungement petition in the Monmouth County Superior Court that listed just the conviction for the Borough Ordinance. Our office filed all the necessary paperwork received no objections from the Monmouth County Prosecutor’s office. On October 26, 2017, the Judge executed a Order Expunging Records of Arrest for the Borough Ordinance.

The bottom line here is that while a Borough Ordinance Conviction cannot be expunged at the same time as an Indictable conviction, it is possible to a file a second expungement petition, after the first expungement is granted, and then expunge the Borough Ordinance conviction. We have successfully done this in Monmouth and Ocean Counties and are optimistic that Judges in other counties will reach the same result.

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