EXPUNGEMENT GRANTED OVER STATE’S OBJECTION THAT SEVERITY OF CRIME CREATED A VALID NEED FOR PRESERVATIONOF THE RECORDS

Wolf Law recently represented a client in an expungement action in which the State’s objection stated that pursuant to N.J.S.A.2C:52-2B, the client’s crime is not eligible for an expungement. We originally took this as seeming to indicate that they thought it is on the list of statutorily barred offenses that cannot be expunged.

We responded that N.J.S.A.2CL52-B clearly states what crimes are not eligible for expungement in New Jersey. “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”

We responded that our client had been convicted of a violation of N.J.S.A. 2C:12-1B(7), Aggravated Assault, N.J.S.A.2C:12-3B,Terroristic Threat, and N.J.S.A.2C:13-2,Criminal Restraint. While Terrorism charges under N.J.S. 2C:38-2 are on the list of offenses barred from expungement, N.J.S.A 2C:12-1B(7), N.J.S.A.2C:12-3B, and N.J.S.A.2C:13-2 are not.   The State then further objected that that it is the best interest of the State to have these records available because of the severity of the crime. The Prosecutor Adebiyi did not offer any more information except an opinion.  Oral Argument was scheduled before the Superior Court Judge hearing the Expungement.  

We argued that this is precisely the same objection offered by the State in IN THE MATTER OF J.N.G. A/K/A N.G., 244 N.J. Super. 605 (App. Div. 1990) which was rejected summarily in the opinion written by Judge Galkin, P.J.A.D at page 609:

“Nevertheless, he is presumptively entitled to have the records of that conviction expunged at this time; he need not show any specific need for expungement. N.J.S.A. 2C:52-2. The State cannot be said to have sustained its burden of overcoming that presumption simply by asserting that bad crimes establish a “need for the availability of the records”, particularly since the statute specifies those crimes not subject to expungement (N.J.S.A. 2C:52-2b) and permits the use of expunged records for a variety of law enforcement and other official purposes (N.J.S.A. 2C:52-17 to 23).”  

We argued that while the circumstances of our client’s offense were in fact troubling (there were injuries to family members with a knife), the State had failed to provide any documentation or police reports from this incident and had completely failed to meet their burden of proof to prevent the expungement of the records.

The Court agreed and entered an Order of Expungement. 

If your crime is of a serious nature but are statutorily eligible for an expungement, contact the experienced Expungement Attorneys at Wolf Law at 732-741-4448 or [email protected].