In the Matter of the Expungement Application of P.H. pursuant to

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1345-13T4
APPROVED FOR PUBLICATION
IN THE MATTER OF THE
EXPUNGEMENT APPLICATION July 17, 2014
OF P.H. PURSUANT TO
N.J.S.A. 2C:52-1 to -32. APPELLATE DIVISION
_______________________________

Argued June 4, 2014 - Decided July 17, 2014

Before Judges Lihotz, Maven and Hoffman.

On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County,
Municipal Appeal No. 12-5375.

Mary R. Juliano, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for appellant State of New Jersey
(Christopher J. Gramiccioni, Acting Monmouth
County Prosecutor, attorney; Ms. Juliano, of
counsel and on the brief).

Edward C. Bertucio argued the cause for
respondent P.H. (Hobbie, Corrigan &
Bertucio, P.C., attorneys; Mr. Bertucio, of
counsel; Justin Lee Klein, on the brief).

The opinion of the court was delivered by

LIHOTZ, J.A.D.

In this appeal we consider the impact of the expungement

statute upon charged indictable and disorderly persons offenses

ultimately resolved through imposition of a civil penalty, which

is ineligible for expungement. The State appeals from an

October 31, 2013 order granting P.H.'s petition for expungement
of all records relating to a criminal complaint charging P.H.

with animal cruelty in the death of a dog. The order required

expungement of the original complaint, records of P.H.'s arrest

and detention, and the indictment and decision to downgrade the

charges, which were ultimately dismissed. The order did not

expunge the final disposition resulting from P.H.'s admission to

a civil violation. The State argues:

POINT I

THE PETITION FOR EXPUNGEMENT SHOULD HAVE
BEEN DENIED BECAUSE PETITIONER'S ANIMAL
CRUELTY PROCEEDINGS RESULTED IN AN
UNEXPUNGEABLE CIVIL DISPOSITION.

POINT II

ALTERNATIVELY, EXPUNGEMENT WAS BARRED
PURSUANT TO N.J.S.A. 2C:52-14c.

We affirm.

The facts essentially are not disputed. In 2012, P.H.'s

dog died of asphyxiation after being hanged from a door by its

leash. P.H. was arrested and charged with fourth-degree animal

cruelty, N.J.S.A. 4:22-17(b)(2) (amended 2013), and the

disorderly persons offense of animal cruelty, N.J.S.A. 4:22-

17(b)(1) (amended 2013).1 Bail was set at $1,500, no ten

percent, which P.H. paid and was released.

1
P.H. was charged under a statute prohibiting animal
cruelty, which was thereafter amended on August 7, 2013 by
(continued)

2 A-1345-13T4
 A county grand jury reviewed the case and found

insufficient evidence to return an indictment. The State

downgraded the fourth-degree offense to two disorderly persons

(DP) offenses under N.J.S.A. 4:22-17(a)(1) (amended 2103) and

N.J.S.A. 4:22-17(a)(3) (amended 2013), and returned the two DP

charges to the municipal court for disposition.2 After

(continued)
"Patrick's Law," L. 2013, c. 88, § 2. The provisions under
which P.H. was initially charged read in pertinent part:

b. A person who shall purposely,
knowingly, or recklessly:

(1) Torment, torture, maim, hang, poison,
unnecessarily or cruelly beat, or needlessly
mutilate a living animal or creature; or

(2) Cause or procure, by any direct or
indirect means, including but not limited to
through the use of another living animal or
creature, any such acts to be done—

Shall be guilty of a crime of the fourth
degree.

[N.J.S.A. 4:22-17(b) (amended 2013).]

Following the 2013 amendment, conduct formerly criminalized by
this subsection remains punishable as a crime of the fourth
degree pursuant to N.J.S.A. 4:22-17(c) and (d), which broadens
the prohibited conduct to include "[c]aus[ing] bodily injury to
a living animal or creature by failing to provide the living
animal or creature with necessary care[.]"
2
The prior version of the statute punished as a disorderly
persons offense the "[o]verdriv[ing], overload[ing], driv[ing]
when overloaded, overwork[ing] . . . or needless[] kill[ing of]
a living animal or creature[,]" N.J.S.A. 4:22-17(a)(1) (amended
(continued)

3 A-1345-13T4
negotiations between P.H. and a New Jersey Society for the

Prevention of Cruelty to Animals (NJSPCA) representative, who

was present in municipal court, P.H. admitted to a violation of

a different statute, N.J.S.A. 4:22-26(a)(1) (amended 2013),

which requires payment of a $1,000 civil penalty.3 The municipal

prosecutor approved the agreement and presented it to the

municipal court judge, who accepted the resolution. The

municipal court judge imposed the fine and added a condition

(continued)
2013), as well as the "[i]nflict[ion] [of] unnecessary cruelty
upon a living animal or creature, by any direct or indirect
means," N.J.S.A. 4:22-17(a)(3) (amended 2013). Subsequent to
the amendment, N.J.S.A. 4:22-17(b)(1) now classifies the
aforementioned conduct as a disorderly persons offense.
Further, portions pertaining to the neglect of animals have been
revised and re-classified as a fourth degree offense pursuant to
N.J.S.A. 4:22-17(c)(2).
3
At the time, N.J.S.A. 4:22-26(a)(1) prohibited:

a. (1) Overdriv[ing], overload[ing],
driv[ing] when overloaded, overwork[ing],
depriv[ing] of necessary sustenance,
abus[ing], or needlessly kill[ing] a living
animal or creature, or caus[ing] or
procur[ing], by any direct or indirect
means, including but not limited to through
the use of another living animal or
creature, any such acts to be done[.]

The 2013 amendment merely deleted the term "deprive of necessary
sustenance[.]" N.J.S.A. 4:22-26(a)(1).

4 A-1345-13T4
prohibiting P.H. from owning a dog for five years. The DP

offenses were dismissed.4

Thereafter, P.H. filed a petition for expungement of all

criminal records, specifically seeking to expunge "evidence of

the . . . complaint; of any evidence of arrest for same; and of

any evidence of detention for same." The State opposed the

motion.

The matter was argued before the Law Division. After

giving careful consideration to the respective positions, the

judge granted the petition, noting the facts presented were

unique and the provisions of N.J.S.A. 2C:52-6 and N.J.S.A.

2C:52-14(c) did not neatly apply. The judge determined the

records relating to the civil penalty were "not going away" and

the NJSPCA retained a separate record of the events.

Specifically, the judge noted:

And I think[] in fairness . . . both
areas are protected. As [I have] read cases
with regard to expungement, it seems as if
[it is] getting a little bit more liberal to
allow people to carry on with their careers,
as [P.H.'s counsel] argues. But I think
that, clearly, the interest of the State is
also protected in that this is just not
going away. It will be there. Animal
control is aware of it, and that any

4
In his certification regarding the disposition of the
municipal matter, Municipal Prosecutor James N. Butler
characterized the disposition as "a plea agreement."

5 A-1345-13T4
 references that talk about the civil aspect
would not be redacted and sealed.

The judge made clear the records of P.H.'s admission to an

offense resulting in the imposition of a civil penalty would not

be expunged. Rather, the judge confined the terms of the order

to expunging those criminal records associated with charges that

were dismissed and to which P.H. was not convicted. An October

31, 2013 order was entered, from which the State filed this

appeal seeking reversal.5

The State maintains expungement was erroneously granted

because P.H. cannot meet the statutory standard providing relief

only

[i]n all cases, except as herein provided,
wherein a person has been arrested or held
to answer for a crime, disorderly persons
offense, petty disorderly persons offense or
municipal ordinance violation under the laws
of this State or of any governmental entity
thereof and against whom proceedings were
dismissed, or who was acquitted, or who was
discharged without a conviction or finding
of guilt, may at any time following the

5
Prior to the matter being listed for oral argument, the
State moved to strike portions of P.H.'s brief, including
arguments and documents not presented to the Law Division. The
reviewing panel denied the motion to strike, directing "[t]he
merits panel can determine whether the disputed statements in
[P.H.'s] brief are supported by the record on appeal." It
appears P.H. removed any contested material from P.H.'s
appendix, mooting that aspect of the motion. Whether P.H. has
advanced arguments based on these materials is not addressed in
the merits briefs, suggesting it too is moot.

6 A-1345-13T4
 disposition of proceedings, present a duly
verified petition as provided in N.J.S.A.
2C:52-7 to the Superior Court in the county
in which the disposition occurred praying
that records of such arrest and all records
and information pertaining thereto be
expunged.

[N.J.S.A. 2C:52-6(a).]

Specifically, the State argues P.H. was not acquitted or

discharged without a finding of guilt and the charges were not

dismissed. Rather, P.H. was "charged with indictable crimes

. . . which, ultimately after downgrade, remand, and then plea

negotiations, were disposed of by way of imposition of a civil

penalty," a disposition "ineligible for expungement."

The State rejects what it characterizes as P.H.'s "created"

criminal-civil dichotomy, asserting the facts supporting the

civil violation remain the same as those underpinning the

initial criminal charges and it is the ultimate outcome — i.e.,

admission to a civil penalty — that determines the eligibility

for expungement of records. The State asserts "[s]imply, it is

one file . . . and there is only one record," therefore, "the

disposition of [P.H.'s] arrest was not a 'dismissal[,]' but a

guilty finding of an amended charge that carried a civil

penalty." The State concludes "[n]othing in the expungement

statute suggests an intent to parse the proceedings that flow

from a criminal complaint in such a manner in order to grant

7 A-1345-13T4
partial expungement of criminal files." Accordingly, the

ultimate disposition requires all records "concerning" P.H.'s

"ineligible civil disposition" including those regarding the

initial criminal charges remain unaltered. N.J.S.A. 2C:52-1.

P.H. counters, arguing, as remedial legislation, the terms

of the statute must be construed broadly in favor of granting

relief. Therefore, P.H. maintains the downgraded disorderly

persons charges were "dismissed" as the term is used in N.J.S.A.

2C:52-6(a). P.H. finds support for this assertion in the

municipal prosecutor's affidavit, included with the State's

opposition before the Law Division. The prosecutor avers the

disorderly persons charges were "dismissed."

In reviewing the question posed, "our role is to effectuate

the legislative intent of the expungement statute[,]" N.J.S.A.

2C:52-1 to -32. In re Expungement Petition of D.H., 204 N.J. 7,

17 (2010) (internal quotation marks and citation omitted). We

do not defer to the legal conclusions reached by the trial

court; our review of the statute is de novo. State v. K.W., 214

N.J. 499, 507 (2013) (citing Manalapan Realty, L.P. v. Twp.

Comm. of Manalapan, 140 N.J. 366, 378 (1995) (noting that

"interpretation of the law and the legal consequences that flow

from established facts are not entitled to any special

deference")).

8 A-1345-13T4
 "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." In re Expungement Application of G.P.B., __ N.J.

Super. __, __ (App. Div. 2014) (slip op. at 3). In this regard,

a petitioner bears the burden to satisfy the statutory

requirements entitling him or her to an order of expungement.

In re G.R., 395 N.J. Super. 428, 431 (App. Div.), certif.

denied, 193 N.J. 275 (2007). "Where the petitioner meets the

burden, the [S]tate has the burden of demonstrating by a

preponderance of the evidence that there is a statutory bar or

that the petition should not be granted." Ibid. Accordingly,

the Legislature provides for the expungement of arrest and

criminal records, under certain conditions and subject to

enumerated exceptions. In re Expungement Application of P.A.F.,

176 N.J. 218, 220 (2003).

When expungement is ordered the statute requires "the

extraction and isolation of all records on file with any court,

detection or correctional facility, law enforcement or criminal

justice agency concerning a person's detection, apprehension,

arrest, detention, trial or disposition of an offense within the

criminal justice system." N.J.S.A. 2C:52-1(a). Nevertheless,

the statute does not order "the destruction[] of expunged

9 A-1345-13T4
records,"6 D.H., supra, 204 N.J. at 17, and "the records remain

available to the judiciary and law enforcement for certain

purposes, N.J.S.A. 2C:52-17 to -23, -27c." P.A.F., supra, 176

N.J. at 221.

Our review of the statute's provisions "discloses an

expressed design to deal only with criminal charges and their

consequences." In the Matter of the Expungement of the Criminal

Record of M.D.Z., 286 N.J. Super. 82, 85 (App. Div. 1995). "In

setting forth the requirements for expungement relief, the

statute differentiates between indictable offenses [N.J.S.A.

2C:52-2] and disorderly persons offenses [N.J.S.A. 2C:52-3],"

D.H., supra, 204 N.J. at 17, as well as violations of municipal

ordinances, N.J.S.A. 2C:52-4.7 Records of civil violations are

ineligible for expungement. N.J.S.A. 2C:52-6(a) (providing

expungement relief is available only as set forth in the

statute).

As noted, the State's strict construction argument insists

the criminal charges were not dismissed but modified subject to

6
"Expunged records . . . include complaints, warrants,
arrests, commitments, processing records, fingerprints,
photographs, index cards, 'rap sheets' and judicial docket
records." N.J.S.A. 2C:52-1(b).
7
The statute also addresses expungement of juvenile
adjudications, N.J.S.A. 2C:52-4.1, and young drug offenders,
N.J.S.A. 2C:52-5.

10 A-1345-13T4
the terms of a plea agreement; and, since the ultimate

disposition was civil, expungement relief is not available to

P.H. We are not persuaded.

As the Law Division judge observed, the statutory

provisions do not squarely address the circumstances presented

and it appears unlikely the Legislature contemplated the unique

situation when an indictable charge ultimately is resolved by

imposition of a civil monetary penalty. Faced with this

anomaly, we note a court "'may also turn to extrinsic guides if

a literal reading of the statute would yield an absurd result,

particularly one at odds with the overall statutory scheme.'"

In re Princeton Office Park, __ N.J. __, __ (2014) (slip op. at

17) (quoting Wilson v. City of Jersey City, 209 N.J. 558, 572

(2012)).

"The chief aim when interpreting a law is to determine and

give effect to the Legislature's intent." In re D.J.B., 216

N.J. 433, 440 (2014) (citation omitted). We discerned the

legislative intent "from the enactment 'when read in the full

light of its history, purpose and context.'" State v. Lewis,

185 N.J. 363, 369 (2005) (quoting State v. Gill, 47 N.J. 441,

444 (1966)). Also, we are guided by the Code's inclusion of

this instruction:

The provisions of the code shall be
construed according to the fair import of

11 A-1345-13T4
 their terms but when the language is
susceptible of differing constructions it
shall be interpreted to further the general
purposes stated in this section and the
special purposes of the particular provision
involved. The discretionary powers
conferred by the code shall be exercised in
accordance with the criteria stated in the
code and, insofar as such criteria are not
decisive, to further the general purposes
stated in this section.

[N.J.S.A. 2C:1-2(c).]

See also State v. Hudson, 209 N.J. 513, 541 (2012) (Patterson,

J., dissenting).

Importantly, the expungement statute "expresses a clear,

'primary objective of providing relief to the one-time offender

who has led a life of rectitude and disassociated himself [or

herself] with unlawful activity.'" D.H., supra, 204 N.J. at 17

(quoting N.J.S.A. 2C:52-32). See also In re Kollman, 210 N.J.

557, 568 (2012) ("[T]he statute is designed to eliminate the

collateral consequences imposed upon otherwise law abiding

citizens who have had a minor brush with the criminal justice

system."). Noting "[t]he statute begins with the language: 'In

all cases, except as herein provided . . . .[,]'" P.A.F.,

supra, 176 N.J. at 223 (quoting N.J.S.A. 2C:52-2(a)), the Court

has instructed "it is not the general rule, but rather the

exceptions that are to be construed narrowly." Ibid.

(citations omitted).

12 A-1345-13T4
 The State's position expressed in this case leads to an

illogical and unfair result, which we find is at odds with this

clearly expressed legislative intent of the expungement statute.

Following the statute's reasoning, had P.H. capitulated and pled

to a DP, or even a petty DP offense, the criminal records would

be subject to expungement. N.J.S.A. 2C:52-3. However, because

P.H. rejected the State's allegation the incident demonstrated

criminal conduct and insisted the dog accidentally died during

training, P.H. must forever be saddled with disclosing records

of criminal indictment, arrest, detention, bail and downgrade

even though no criminal disposition occurred. We conclude the

more reasonable common-sense interpretation favors expungement

in this instance and conclude the facts presented fit within

N.J.S.A. 2C:52-6(a) because P.H.'s criminal charges were

"discharged without a conviction or finding of guilt" and

"dismissed." See State ex rel. K.O., 217 N.J. 83, 94 (2014)

("Statutory language is entitled to its ordinary meaning and to

be given a common-sense construction."). See also State v.

Galicia, 210 N.J. 364, 400 (2012) (Albin, J., dissenting)

(favoring common sense interpretation of the Code's statutory

provisions).

Importantly, P.H. was not "found guilty," nor was a guilty

plea entered. Rather, the record contains P.H.'s admission he

13 A-1345-13T4
violated a civil statute. This distinction is extremely

important as it obviates the State's concern that granting

expungement in this circumstance may subject each and every

criminal plea agreement to partial expungement of records

evincing initial criminal charges, indictment, arrest and the

like.

The State's reliance on the pre-Code opinion of Sawran v.

Lennon, 19 N.J. 606 (1955), to suggest civil suits for penalties

may be equated with criminal or quasi-criminal ordinance

violations ignores the specific pronouncement of the Court in

that matter, which held: "Suits for penalties, however, though

originating in the same way by statutes, or in ordinances

adopted pursuant to appropriate statutes, are neither criminal

nor quasi-criminal in nature but civil. Such offenses are

punishable, as the name implies, by penalties[.]" Id. at 612

(internal citations omitted).

We also find unavailing the State's assertion that

expungement of the initial criminal charges is prohibited as the

same conduct supported both the criminal and civil violations of

the respective statutes. Without examining the details of the

facts against the requisites of the respective statutes, we note

Chapter 22, which is designed to prevent cruelty to animals,

N.J.S.A. 4:22-11.1 to -60, includes two distinct statutory

14 A-1345-13T4
schemes, differentiating criminal prosecutions from civil

actions. Also apparent is the different burdens of proof in the

respective proceedings. Dep't of Conservation v. Scipio, 88

N.J. Super. 315, 322 (App. Div.) ("[C]ivil proceedings to

recover a statutory penalty do not require proof beyond a

reasonable doubt that the accused transgressed the law."),

certif. denied, 45 N.J. 598 (1965).

Further, we find unpersuasive the suggestion this matter

falls within the exception delineated by the statute because

P.H.'s admission evinced "a plea agreement" and P.H.'s admission

to the civil offense precludes further prosecution for the same

facts. This was a negotiated result, but it is not a plea

agreement.

The "Guidelines for Operation of Plea Agreements in the

Municipal Courts of New Jersey," included in the Appendix to

Part VII of the Rules, specifically provides plea agreements

relate to offenses, which by definition excludes civil matters.

Guidelines for Operation of Plea Agreements in the Municipal

Courts of New Jersey, Pressler & Verniero, Current N.J. Court

Rules, Guideline 1 at 2501 (2014). ("The purpose of these

Guidelines is to allow for flexibility in the definitions and

exclusions relating to the plea agreement process as that

15 A-1345-13T4
process evolves and certain offenses come to demand lesser or

greater scrutiny.").

Additionally, the State's reliance on State v. Womack, 145

N.J. 576 (1996), to suggest double jeopardy attaches to civil

penalties is inapposite. In Womack, the defendant faced

criminal charges following civil adjudication of his conduct of

practicing medicine without a license. Id. at 581. The Court

concluded double jeopardy may attach precluding prosecution if

the civil penalty is punitive rather than remedial. Id. at 584-

85. The facts in this matter are unlike Womack. Therefore, its

authority is not controlling.

First, the animal cruelty statute belies the State's

general argument that double jeopardy attaches to civil

admissions. N.J.S.A. 4:22-28 provides "[t]he indictment of a

person under the provisions of this article . . . shall not in

any way relieve that person from liability to be sued for the

appropriate penalties under [N.J.S.A.] 4:22-6." Second, in this

matter double jeopardy is implicated not because of the penalty

imposed, but because P.H. faced criminal charges, which the

grand jury concluded could not be sustained. After a downgrade

to lesser quasi-criminal offenses, the State decided to abandon

prosecution and dismiss the criminal charges in favor of

allowing a civil fee remitted to the NJSPCA.

16 A-1345-13T4
 Following our detailed review of the numerous arguments

advanced, we find unfounded the State's fears that extending

relief to the criminal records in this matter will result in a

flood of expungement requests. Based on the unusual facts

presented, we conclude P.H. was held to answer for an offense

with no resultant criminal or quasi-criminal conviction

consequences, as all criminal charges were dismissed. The

petition supported expungement, meeting the requisites of

N.J.S.A. 2C:52-6(a). The State's opposition was properly

rejected. Accordingly, expungement of the criminal records was

correctly ordered and that order appropriately excluded

municipal court and NJSPCA records regarding P.H.'s admission of

responsibility under N.J.S.A. 4:22-26(a). See M.D.Z., supra,

286 N.J. Super. at 86 ("It is clear, from both the specific

provisions of the expungement statute and its general tenor,

that the Legislature intended it to encompass only criminal

charges and their consequences.").

Affirmed.

17 A-1345-13T4