New Jersey Expungement Ineligibility Due to Subsequent Crime

IN RE: The Expungement Petition of Robert Ross
Superior Court of New Jersey
May 6, 2008

Holding: The Superior Court of New Jersey affirmed the district court’s decision in denying the defendant his expungement request because defendant’s crime of false swearing counted as a subsequent crime that made him ineligible under the statute.

Why This Case is Important: N.J.S.A. 2C:52-2(a) allows a person who was convicted of a crime to request a court to expunge the conviction and all records related as long as the person was not convicted of any prior or subsequent crime and 10 years has passed from the date of the conviction. The statute specifically uses the term “crime”, therefore if a person commits any crime before or after the date of the target conviction, that person will be ineligible to seek expungement under N.J.S.A. 2C:52-2(a), even if the person was convicted of the subsequent or prior crime at the same date and time as the target crime.

Facts of This Case: Defendant and his family were the owners of several rental properties in Atlantic City. In 1989 and 1990, defendant had installed a defective water heater that violated applicable building codes in one of the properties. Defendant then bribed a City Housing Authority inspector on multiple occasions to ignore the violation. The defective water heater resulted in an accumulation of carbon monoxide that asphyxiated a family living in the building at the time.

The Atlantic County Prosecutor’s Office investigated the matter and in an interview with defendant in May 1990, defendant falsely stated under oath that he had nothing to do with the faulty water heater. Defendant was later indicted and in 1992, he pleaded guilty to one count of fourth degree swearing and one count of third degree bribery. Defendant was sentenced to three years of probation. Defendant successfully completed his probation and in 2007, he filed a petition to expunge his bribery conviction.

The district court denied defendant’s request, stating that N.J.S.A. 2C:52-2(a) does not allow expungement when the petitioner has been convicted of a crime which was committed later on, even if the petitioner was convicted of both crimes on a single sentencing date. Defendant appealed the order, arguing that a simultaneous conviction does not count as a prior or subsequent crime under the statute. The State argued that defendant’s crime of bribery occurred from April 1989 to February 28, 1990, while the false swearing crime occurred in May 1990, which was months later and is considered a subsequent crime under the language of the statute and therefore makes the defendant ineligible.

The Superior Court of New Jersey agreed with the State. It held that the language of N.J.S.A. 2C:52-2(a) is clear and unambiguous. The statute only allows expungement when the person has not been convicted of any prior or subsequent crime. The words “prior” and “subsequent” modify the term “crime”, thus making it clear that if two crimes were committed on separate occasions, it would make the person ineligible for expungement. Here, the defendant had committed two separate crimes months apart from each other. The Court also explained that if the Legislature wanted the statute to be interpreted as defendant argues, it would have used the term “conviction” instead of “crime”.

Furthermore, the Court explained that N.J.S.A. 2A:164-28, which was the applicable statute prior to N.J.S.A. 2C:52-2(a), was much broader in comparison in allowing a person to seek expungement. N.J.S.A. 2A:164-28 only allowed expungement if the person had no subsequent conviction. The current statute does not allow expungement if the person commits a subsequent crime. The Legislature intended to change the language in order to preclude expungement only when a crime was committed on a subsequent occasion, regardless of the conviction date.

Therefore, the district court was correct in denying defendant’s petition based on its reasoning and interpretation of the statute.

Key Language: The important language in N.J.S.A. 2C:52-2(a) is the term “crime”. By using that term, the Legislature has clearly intended to prevent any person who has committed additional crimes from seeking expungement. It does not matter when the person was convicted of the crime, but rather when he actually committed them. Therefore, in order to seek expungement for a past conviction, the crime in which that person was convicted must have been the only crime that person has committed.

Expert Advise: “In the state of New Jersey, the courts will only grant a request for expungement of a criminal conviction if the person has not been convicted of any other crimes that were committed before or after the criminal offense they are seeking to expunge.” Attorney Mathew Higbee.

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