N.J. Super. 53 (App. Div. 1979), superseded by statute,
see, State v. N.W., 329 N.J. Super. 326, 334, n.9 (App.
Div. 2000). These exclusions are strictly applied, and if
the Judgment of Conviction is not for one of the
enumerated offenses, then the statutory objection can
not be supported. State v. N.W., 329 N.J. Super. 326
(App. Div. 2000); IMO Application of R., 171 N.J. Super.
at 56-57.
In State v. Blazanin, 298 N.J. Super. 221 (App. Div.
1997), the Appellate Division concluded that the Law
Division lacked authority to treat petitioner’s prior
conviction for petit larcecy as a disorderly persons offense,
overruling State v. R.G.W., 208 N.J. Super. 60 (App. Div.
1986), and even assuming that it did, petitioner was not
entitled to expungement since he had a subsequent
indictable conviction.
Expungement of a conviction for the sale or
distribution of CDS or for possession with intent to sell
is prohibited, subject to two specific limited exceptions.
If the CDS involved was: (1) marijuana and the quantity
sold, distributed or possessed with intent to sell was 25
grams or less; or (2) hashish, and the quantity sold,
distributed or possessed with intent to sell was 5 grams
or less. N.J.S.A. 2C:52-2c.
Proof of the quantity of drugs, particularly for pre-
Code drug offenses, where the quantity of the drugs was
not a required element of proof of the offense, can be
accomplished through the use of “extraneous, but
relevant information” [not evidence], such as lab reports.
State v. Merendino, 293 N.J. Super. at 449.
In In Re Application, R.C., 292 N.J. Super. 151 (Law
Div. 1996), the Court found that aiding or abetting the
crime of sale or distribution of CDS did not fall within the
category of convictions which were absolutely barred
from expungement. This case notes that aiding or
abetting is a separate offense and within the statutory
construct of N.J.S.A. 2C:52-2c, it is not an enumerated
offense, as it is under the provisions of N.J.S.A. 2C:52-2b.
In Re Application, R.C., 292 N.J. Super. at 154. In Re
Application, R.C., 292 N.J. Super. at 154.The holding in
R.C. was expressly overruled in IMO Petition for
Expungement of Records of D.C. v. State, N.J. Super.
(App. Div. 2001), which affirmed the denial of
expungement of a person who pled guilty to distribution
of LSD and related offenses on the ground that the
statutory bar against eligibility for expungement in
controlled dangerous substance distribution cases
applies equally to principals and accomplices.
- Disorderly or petty disorderly persons convictions
The existence of more than two disorderly persons or
petty disorderly persons convictions also constitutes a
statutory bar to a criminal conviction expungement. See,
In re F.A.U., 190 N.J. Super. at 247-248. Although the
language of N.J.S.A. 2C:52-2a is phrased such that
convictions for no more than two disorderly or petty
disorderly persons convictions shall not be a bar to relief,
that statutory phrase can also be read to mean that a
person with three disorderly or petty disorderly persons
convictions is eligible for relief, an interpretation which
conforms this subsection to the provisions of N.J.S.A.
2C:52-3. State v. A.N.J., III, 98 N.J. at 427. If the
petitioner has more than three disorderly or petty
disorderly persons convictions, then expungement is
prohibited. State v. Ochoa, 314 N.J. Super. 168, 172
(App. Div. 1998). A petitioner with more than three
disorderly persons or petty disorderly persons
convictions can not expunge up to three of those
convictions and leave the remaining disorderly persons or
petty disorderly persons convictions on their record.
IMO Application of R., 171 N.J. Super. 53, 57 (App. Div.
1979).If the petitioner has a prior or subsequent criminal
(indictable) conviction, regardless if that record is
expunged or not, relief under this provision is barred by
the statute. State v. H.G.G., 202 N.J. Super. at 271-272;
IMO, N.A., supra.In State v. Ochoa, 314 N.J. Super. 168 (App. Div.
1998), the Appellate Division affirmed the denial of
petitioner’s petition for expungement of her three
disorderly and petty disorderly persons convictions.
Petitioner had four other convictions in other
jurisdictions, which precluded consideration of her
expungement petition pursuant to N.J.S.A. 2C:52-3. In
making this finding, the Appellate Division overruled the
contrary decision in State v. H.J.B., 240 N.J. Super. 216
(Law Div. 1990), that foreign disorderly persons
convictions could not be considered in determining such
eligibility.The existence of a prior or subsequent criminal
conviction constitutes an absolute bar to the
expungement of any convictions for disorderly or petty
disorderly persons offenses, even if the prior arrest record
for a criminal charge was expunged. IMO Petition,
Anthony Podias, 284 N.J. Super. 674 (App. Div. 1995).
The fact that this application of the statute creates an
anomaly does not give a Court the right or authority to