EXPUNGEMENTEXPUNGEMENTEXPUNGEMENTEXPUNGEMENTEXPUNGEMENT
I. GENERAL PROVISIONS AND OVERVIEW
In New Jersey, expungement of an arrest and/or
conviction record is a statutory creation of the
Legislature. N.J.S.A. 2C:52-1 et seq. It is a remedy
created by law, and is not an equitable remedy subject to
judicial interpretation or the application of equitable
principles. In re F.A.U., 190 N.J. Super. 245, 247-248
(App. Div. 1983), cited with approval in State v. A.N.J.,
III, 98 N.J. 421, 427 (1985); State v. T.P.M., 189 N.J.
Super. 360, 367-368 (App. Div. 1983); E.A. v. N.J. Real
Estate Comm., 208 N.J. Super. 65, 68 (App. Div. 1986),
certif. denied, 104 N.J. 415 (1986); State v. Blazanin, 298
N.J. Super. 221, 226, 229 (App. Div. 1997); IMO
Application of Hart, 265 N.J. Super. 285, 292-293 (Law
Div. 1993). Cf., State v. Raymond M., 188 N.J. Super.
533, 538 (Law Div. 1982)(interpreting the Code
provisions on expungement, as applied to pre-Code
offenses and the extent of relief available, the Court stated
that the Code provisions “confers a considerably lesser
benefit than previously resulted,” but, the “Legislature is
entitle to restrict the benefits of expungement.”) As a
statutory remedy, the expungement statutes should be
viewed as “a remedial, not a punitive statute.” State v.
T.P.M., 189 N.J. Super. 360, 367-368 (App. Div.
1983).
The Code statutory scheme became operative on
September 1, 1979. However, for the purposes of
continuity, the provisions of N.J.S.A. 2C:52-1 et seq. were
made retroactive to arrests and convictions pre-dating the
adoption of the Code. N.J.S.A. 2C:52-25. This
retroactivity provision was challenged in State v. T.P.M.,
supra, as an ex post facto constitutional violation. In
rejecting the constitutional claim, the Appellate Division
stated:
... the Legislature had a right to overhaul the statutory
expungement scheme in 1979 and make the new law
retroactive in the interest of uniformity and efficiency
without treading on the Due Process or Ex Post Facto
Clauses of the Federal Constitution. A ‘statutory
expectation’ does not ‘mean that in addition to the full
panoply of due process required to convict and confine’
the expectation becomes a protected liberty interest....
Legislation which readjusts rights and burdens is not
unconstitutional solely because it upsets settled
expectations.” Id. at 364-365.
The statute permits a petitioner to apply to expunge
his/her arrest and subsequent disposition of that arrest.
But, the statute only applies to arrests charging violations
of the laws of this State. The statute can not be utilized
to expunge arrests and their dispositions for charges
under federal law or the laws of other jurisdictions. IMO,
N.A., 218 N.J. Super. 547 (App. Div. 1987); IMO
Application of Hart, 265 N.J. Super. 285 (Law Div.
1993); State v. Josselyn, III, 148 N.J. Super. 538 (Law Div.
1977).There are two categories of disposition of an arrest:
(1) a non-conviction disposition, or (2) a conviction
disposition. Non-conviction dispositions include
various sub-categories: acquittal; dismissal; discharge
without a finding of guilt; pre-trial intervention,
supervisory treatment, or other diversion program; not
guilty by reason of insanity or lack of mental capacity. A
conviction disposition includes a determination as a
result of a trial, with or without a jury, or the entry of a
plea of guilty to an offense by way of accusation or
indictment.Every petitioner, regardless of the type of
expungement being sought - non-conviction disposition,
(i.e., an arrest not resulting in a conviction), or conviction
disposition, (i.e., an arrest resulting in a conviction) -
must disclose to the court: any other non-conviction or
conviction dispositions, any pending charges, for
criminal or other offenses, except motor vehicle
violations; if the petitioner is on probation, parole, under
supervisory treatment or otherwise subject to judicial
supervision (N.J.S.A. 2C:52-8a, and 2C:52-13); any
related civil or administrative actions (N.J.S.A. 2C:52-
14d); and if the petitioner is seeking to expunge a
criminal conviction, any previous expungements for
criminal offenses (N.J.S.A. 2C:52-8b). State v. DeMarco,
174 N.J. Super. 411, 417 (Law Div. 1980). The burden
initially falls to the petitioner to “demonstrate that he/
she is entitle to the [expungement] relief sought.” State
v. Merendino, 293 N.J. Super. at 451. Failure to make
such disclosures is a basis for the court to deny relief. In
the absence of court or other official public records, the
prosecutor is entitled to present, and the Court is
“entitled to consider all facts that were available to both
the State and the petitioner at the time the petitioner
entered his original plea to determine if he is entitled to
expungement.” Id. at 455.When a record is expunged, the Court enters an
Order to Expunge which requires criminal justice
entities, corrections, and the judiciary to isolate, but not