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“Public Interest” Expungement of Third-Degree Possession of CDS with Intent to Distribute Conviction Granted

April 15, 2013

The Law Office of Randolph H. Wolf recently represented an individual applying for an expungement of a third-degree possession of controlled dangerous substance with intent to distribute.  Under the old New Jersey expungement law, convictions for possession of CDS with intent to distribute were ineligible for expungement.  In 2010, however, the Legislature enacted N.J.S.A. 2C:52-2(c)(3).  Under that statute, such convictions are eligible for expungement “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 client was convicted of third-degree possession of marijuana with intent to sell in 1973.  The State opposed the expungement, arguing that unregistered firearms were found in the client’s home at the time of the offense, that the client had other arrests and convictions (which included one disorderly persons offense and one arrest resulting in dismissal), and that the client had a history of extensive driving violations.

The attorneys at the Law Office of Randolph Wolf submitted a brief and appeared in Ocean County Superior Court on the client’s behalf to argue in favor of the expungement, pointing out that the “nature of the offense” and the applicant’s “character and conduct since conviction” both weighed in favor of expungement.  We pointed out that, at the time of the arrest, the client was only 19 years old.  There was no indication that violence was involved or that the client had distributed drugs in the past.  Moreover, we argued that under current case law, the court was prohibited from taking into consideration the fact that unregistered firearms were found at the time of the arrest as the leading case on the matter, In re Kollman,  210 N.J. 557 (2012), permits the court to consider only “undisputed or proven facts.”   In any event, we argued, the guns were inoperable.

With respect to the client’s character and conduct, we pointed out that the offense occurred almost 40 years ago.  The client was now 57 years old, married, and had a son.  Since his felony conviction, the client had no other arrests.  He had obtained his Associate’s and Master’s Degrees.  Finally, we noted that the client was currently unemployed due to the economic downturn and that he has had difficulty obtaining employment due to his criminal record.  The Court agreed that the client had met the public interest showing in this case and granted the expungement.

If you are applying for a public interest expungement, please note there are several requirements that must be complied with under current case law.  In order to meet the public interest showing, you must supply with court with plea and sentencing transcripts, a presentence report, and letters of support from individuals in the community, among other documentation.  Although an appearance is not typically required for expungements, they are almost always required when you are applying for a public interest expungement.

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