Time Requirements for Expungements in New Jersey

In re Kollman
Supreme Court of New Jersey
March 13, 2012

Holding: New Jersey Statute § 2C:52-2 allows the expungement of certain offenses within five years of the conviction so long as there has been no subsequent convictions and the petitioner establishes that it is in the public interest to grant expungement; if these objective elements are met, a court may not deny the expungement on common grounds such as that the offense was too serious.

Why This Case is Important: Prior to 2010, section 2C:52-2 required that petitioners wait at least ten years before applying for expungement. A petitioner who had met the ten-year mark, who had satisfactorily complied with probation, parole, or incarceration, had paid his fines, and who had no prior or subsequent convictions was said presumed to be entitled to expungement. Once these objective elements were met, the burden shifted to the State to show by a preponderance of the evidence that the petitioner was statutorily barred from expungement.

In 2010, the state legislature amended the New Jersey expungement statute. The legislature added third- and fourth-degree controlled dangerous substance convictions to the list of eligible convictions for expungement. The legislature also added the five-year pathway.

The five-year pathway allows a petitioner to apply for expungement five years from the date of his conviction. It requires the petitioner to show that he has had no subsequent convictions and that it would be in the public interest to expunge his criminal records. This case clarifies how to satisfy the public interest prong. The court must look to the nature of the offense and the petitioner’s character and conduct when determining whether the public interest test is met.

Looking to the nature of the offense, the court must examine the facts surrounding the conviction. The court should look to the definition of the offense, the grade of the offense, and the facts of the conviction. The court must also look to what the petitioner’s role was in the crime, how he acted during the commission of the crime, and any harm that the petitioner caused.

In analyzing the petitioner’s character and conduct, the court must examine how the petitioner performed in jail or on probation. It should examine the petitioner’s rehabilitative actions and any relevant conduct prior to the conviction. The court will weigh these factors in order to determine whether the petitioner is at risk of re-offending.

The court must take all of these factors into consideration. After considering the factors, a court will determine whether the benefits of expungement outweigh the need for the availability of the records. Establishing a law-abiding character and a low risk for re-offending will heavily weigh towards expungement.

It is important to note that a court may not deny an expungement request solely because of one factor. In this case, the Supreme Court of New Jersey determined that it was error for the trial court and appellate court to deny the petitioner’s expungement request because the offense was “too serious.” The petitioner in this case demonstrated he was rehabilitated and had moved forward in a positive direction with his life. The Court held that the petitioner’s actions weighed heavily toward expungement. As such, it remanded the case to the trial court, and ordered it to consider all the petitioner’s relevant factors for expungement.

Facts of This Case: In 2001, the petitioner plead guilty to one count of third-degree distribution of a controlled dangerous substance. He was sentenced to time in county jail and three years of probation. In 2002, the petitioner successfully completed probation.

In 2010, the petitioner filed a petition for expungement of his criminal records. The trial court denied the request because of the serious nature of the offense. The New Jersey Superior Court, Appellate Division, affirmed the trial court’s decision. The New Jersey Supreme Court in this case reversed the decision and remanded the case back to the trial court, ordering it to consider the petitioner’s evidence of rehabilitation.

The New Jersey Supreme Court determined that in order to determine whether expungement is in the public interest, courts had to examine the nature of the offense and the petitioner’s character and conduct. Courts therefore had to analyze the facts surrounding the conviction, and the petitioner’s rehabilitation.

The Court determined that the petitioner had presented ample evidence of rehabilitation. The petitioner offered proof he had completed college, worked full-time in school, was active in various community projects, had no subsequent convictions, and provided 21 letters of recommendation for expungement. The Court determined that the petitioner’s law-abiding activities and commitment to his community weighed heavily towards expungement.

The Court held that it was error for the trial court and appellate division to deny expungement only because the offense was too serious. As a result, the New Jersey Superior Court reversed the appellate division and trial court’s decisions. The Court thereby ordered the trial court to consider all relevant factors to determine whether expungement would be in the public interest.

Key Language: To make the determination that expungement is in the public interest, courts are to consider the nature of the offense and the applicant’s character and conduct since the conviction. The nature of the offense encompasses undisputed or proven facts about the crime and its commission. In regards to the petitioner’s character and conduct, courts may examine an applicant’s performance while in jail or on probation. Courts may also consider whether an applicant has engaged in activities that have limited his risk of reoffending.

Expert Advise: “A petitioner does not have to demonstrate he is extraordinary in order to be granted expungement. Evidence that he or she is rehabilitated and leads a law-abiding lifestyle weighs heavily towards expungement. This case established that courts must look to all relevant factors in weighing whether expungement should be granted. It provides an authoritative foundation for expunging criminal records in New Jersey.” -Attorney Mathew Higbee.

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