grant an expungement where the statute forbids it. State
v. A.N.J., III, supra.
- Juvenile Adjudications
With the adoption of an amendment N.J.S.A.
2C:52-4.1 at P.L.1980, c.136, §1, the holding in IMO,
State v. W.J.A., 173 N.J. Super. 19 (Law Div. 1980) is no
longer authoritative. It held that an adjudication of a
juvenile as delinquent was not within the scope of the
Code expungement statutes since the provisions of
N.J.S.A. 2A;4-67 had not been repealed.
- Youthful Drug Offender Convictions &
Dispositions
The provisions of N.J.S.A. 2C:52-5, govern youthful
drug offenders (persons 21 years of age or younger at the
time of the offense).
Diversion, supervisory treatment or PTI for a drug
offense classified as a disorderly persons or petty
disorderly persons offense does not constitute a statutory
bar to expungement relief under this section. State v.
B.C., 235 N.J. Super. 157 (Law Div. 1989).
- Non-conviction dispositions of arrests
Where a non-conviction disposition was the result of
a determination that the person was insane or lacked the
mental capacity to commit the crime charged, then,
pursuant to N.J.S.A. 2C:52-6c, no expungement can be
granted. To prove this objection, a prosecutor only need
obtain from the clerk of the court where the judgment
was entered, a certified copy of the judgment making the
finding of insanity or lack of mental capacity. State v.
H.G.G., 202 N.J. Super. at 278-279.
- The need for the continued availability of the
records outweighs the desirability of freeing the
petitioner from any disabilities, N.J.S.A. 2C:52-14b.
This is the only objection provision in the
expungement statutes which allows the Court any
measure of discretion in the determination to grant or
deny expungement. Moreover, it places a specific proof
burden on the prosecutor who wishes to make this
objection. The party offering this objection is required to
satisfy a burden of proof of preponderance of the evidence
in order to sustain the objection. State v. X.Y.Z. Corp.,
119 N.J. at 422-424; IMO, J.N.G., 244 N.J. Super. 605
(App. Div. 1990); State v. H.G.G., 202 N.J. Super. at
280-282; State v. R.E.C., 181 N.J. Super. 79, 82 (Law
Div. 1981).In order to meet this evidentiary burden, the
prosecutor must be prepared for an evidentiary hearing.
In some instances, that may require that witnesses be
prepared and subpoenaed to appear and that evidence
related to the charges which are the subject of the petition
to expunge be ready for introduction to the Court.
However, not all materials presented need to qualify as
evidence in the criminal prosecution context. “The use
of extraneous, but relevant, information is not
uncommon in ancillary proceedings in the criminal
justice system.” State v. Merendino, 293 N.J. Super. at
449.- Non-conviction disposition from a Plea bargain
This objection can only be interposed if the
petitioner is seeking to expunge a non-conviction
disposition, pursuant to N.J.S.A. 2C:52-6, where the
non-conviction disposition resulted from a plea bargain
agreement involving a conviction on other charges. This
objection can only be applied until such time as the
petitioner seeks to apply for the expungement of any
related criminal conviction. If the petitioner is otherwise
eligible for the criminal conviction expungement,
pursuant to N.J.S.A. 2C:52-2, then the non-conviction
dispositions in the plea bargain agreement can also be
expunged. But see, IMO Expungement T.P.D., 314 N.J.
Super. 535 (App. Div. 1998), aff’d. o.b., 314 N.J. Super.
643 (Law Div. 1997), where a special condition of a PTI
dismissal and plea bargain was found to be sufficient to
bar an expungement. See also, State v. San Vito, 133 N.J.
Super. 508 (App. Div. 1975), where the State sought an
agreement by the petitioner not to pursue any civil action
against the State as a condition for not entering an
objection to the expungement petition.- Prior criminal conviction expunged, N.J.S.A.
2C:52-14e
This section is, in effect, a restatement of the
limitations found at N.J.S.A. 2C:52-3, -4, -4.1 and -5. It
merely clarifies that the existence of a prior expungement
of a criminal conviction is a statutory bar to other relief,
subject to the following two exceptions: (1) the petitioner
is seeking to expunge a municipal ordinance conviction,
pursuant to N.J.S.A. 2C:52-4; (2) the petitioner is
seeking to expunge a non-conviction disposition
pursuant to N.J.S.A. 2C:52-6.