RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1359-13T1
APPROVED FOR PUBLICATION
IN THE MATTER OF THE
June 9, 2014
EXPUNGEMENT OF THE CRIMINAL
RECORDS OF G.P.B. APPELLATE DIVISION
____________________________________________________
Submitted May 28, 2014 – Decided June 9, 2014
Before Judges Fisher, Espinosa and O'Connor.
On appeal from the Superior Court of New
Jersey, Law Division, Warren County, Docket
No. 11-EX-12.
Richard T. Burke, Warren County Prosecutor,
attorney for appellant State of New Jersey
(Kelly Anne Shelton, Assistant Prosecutor,
of counsel and on the brief).
Krovatin Klingeman, LLC, attorneys for
respondent G.P.B. (Gerald Krovatin and
Ernesto Cerimele, on the brief).
The opinion of the court was delivered by
FISHER, P.J.A.D.
In this appeal, we again1 consider whether the so-called
"crime-spree" principle formulated in In re Fontana, 146 N.J.
Super. 264, 267 (App. Div. 1976) – a product of our
interpretation of an earlier, differently-worded expungement
1
The parties have alluded to a handful of unreported decisions on
this same subject rendered by this court within the last year.
statute, N.J.S.A. 2A:164-28 – has application to a petition
seeking expungement pursuant to the current statute, N.J.S.A.
2C:52-2(a), of a single judgment encompassing multiple crimes
committed on two different days.
The record demonstrates that, on September 16, 1999,
petitioner pleaded guilty to one count of third-degree
conspiracy, N.J.S.A. 2C:5-2, and three counts of third-degree
making gifts to public servants, N.J.S.A. 2C:27-6(b). At his
plea hearing, petitioner acknowledged he and another agreed to
make a monetary campaign contribution to one municipal official
on April 19, 1999, and to two other municipal officials on April
20, 1999, to secure their opposition to a municipal resolution.
This illicit agreement also included petitioner's promise to
make additional campaign contributions once the municipal
officials voted against the resolution. At sentencing, the
conspiracy conviction was merged into the convictions on the
three other crimes, and petitioner was sentenced to concurrent
three-year probationary terms conditioned upon a thirty-day stay
in the county jail; community service, fines and other penalties
were also imposed.
On November 15, 2012, petitioner filed this action, seeking
expungement of records relating to the 2001 judgment of
conviction. The State objected and, following argument, the
2 A-1359-13T1
trial judge granted the application for reasons set forth in an
oral decision. In appealing, the State argues that the judge
erred in granting expungement because "petitioner was convicted
of three separate crimes committed on two separate dates."
The expungement of criminal records is available only if
authorized by legislation. There is no constitutional or common
law right to the expungement of records relating to a criminal
conviction.2 The order under review was based solely on the
trial judge's interpretation of N.J.S.A. 2C:52-2(a), which
states, in pertinent part, that a person's criminal records may
be expunged when that person
has been convicted of a crime under the laws
of this State and . . . has not been
convicted of any prior or subsequent crime
. . ., after the expiration of a period of
10 years . . . .
[Emphasis added.]
The statute imposes other requirements, but we need not consider
them because, in seeking reversal, the State argues only that
petitioner was convicted of "crimes" not "a crime" or, stated
another way, petitioner failed to prove he had not been
convicted of any prior or subsequent crime because he pleaded
2
It is not clear whether arrest records – generated through law
enforcement abuses – may be expunged as an equitable remedy.
See Bd. of Educ., Middletown Twp. v. Middletown Teachers Educ.
Ass'n, 365 N.J. Super. 419, 427-28 (Ch. Div. 2003).
3 A-1359-13T1
guilty to multiple crimes and each was prior or subsequent to
the other.
Although the trial judge did not utter the words "crime
spree" in his opinion, we assume he applied this principle in
granting relief to petitioner. The "crime spree" principle was
originally enunciated in Fontana, and recently examined – in
connection with the current expungement statute – in In re Ross,
400 N.J. Super. 117 (App. Div. 2008). In his oral decision, the
judge referred to another recent decision, In re Criminal
Records of R.Z., 429 N.J. Super. 295 (App. Div. 2013), and
concluded that petitioner's crimes – participating in a multi-
act conspiracy over the course of two days to unlawfully obtain
a favorable determination on a pending municipal matter – were
"so closely tied together" as to permit the relief sought.
We reject the trial judge's interpretation and application
of N.J.S.A. 2C:52-2(a). In Ross, we held the statutory language
in question – a person who was convicted of "a crime" may obtain
expungement if he or she "has not been convicted of any prior or
subsequent crime," N.J.S.A. 2C:52-2(a) – is "clear and
unambiguous on its face and is susceptible of only one
interpretation," namely, that "the words 'prior' and
'subsequent' do not modify the term 'conviction[,]'" but instead
"modify the term 'crime,' which leads to the conclusion that if
4 A-1359-13T1
two crimes are committed on separate occasions, they are
precluded from expungement regardless of whether the two crimes
carry a single sentencing date and therefore a single date of
conviction." Ross, supra, 400 N.J. Super. at 122. We agree
with that interpretation.3 The Legislature used the word
"crime," not "conviction," in N.J.S.A. 2C:52-2(a), and did so in
the face of our interpretation in Fontana of the earlier
statute, N.J.S.A. 2A:164-28, which used the word "conviction"
instead of "crime." We assume the Legislature understood the
distinction when it selected the language of the current statute
– action very likely intended to avoid the application of the
amorphous "crime-spree" concept in future matters – and we are,
therefore, bound by the Legislature's unambiguous command in
such matters.
We lastly note that in a more recent unpublished opinion,
we again adhered to Ross's interpretation of the statutory
language in question when reversing an order that permitted
expungement of criminal records where the petitioner was
convicted of drug crimes that occurred five days apart. We are
3
We do not agree with the trial judge's apparent determination
that R.Z. supports his application of the so-called "crime
spree" principle to petitioner's multiple crimes over two days.
In R.Z., we adhered to Ross in holding that a petitioner had not
sustained his burden to prove "he committed his crimes
concurrently, and not on 'separate occasions.'" 429 N.J. Super.
at 297 (quoting Ross, supra, 400 N.J. Super. at 122).
5 A-1359-13T1
mindful that the Supreme Court has granted certification in that
matter, In re Expungement Petition of J.S., __ N.J. __ (April
11, 2014), and may soon either endorse or reject Ross's
interpretation. Until instructed otherwise, however, we will
continue to adhere to Ross because we agree with its
interpretation of the statute. In applying Ross's holding, we
must set aside the expungement order in question. In entering
his guilty plea, petitioner admitted the commission of crimes on
April 19 and April 20, 1999. N.J.S.A. 2C:52-2(a) only permits
expungement when that relief is sought by a person who "has been
convicted of a crime," not crimes.4
Reversed.
4
Although our decision reverses the expungement order and would,
therefore, ordinarily deprive petitioner of the confidentiality
of his 2001 crimes previously granted by the trial court, we
have nevertheless kept petitioner's identity confidential in
this opinion in light of the possibility that the Supreme
Court's decision in J.S. may prove favorable to him. We do not
mean to suggest, however, that our judgment is stayed pending
further proceedings, if any, in the Supreme Court. We intimate
no view whether a stay should be entered if petitioner seeks
review in the Supreme Court.
6 A-1359-13T1