In the Matter of the Expungement Petition

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

In the Matter of the Expungement Petition of J.S. (A-84-13) (073376)
In the Matter of the Expungement of the Criminal Records of G.P.B. (A-2-14) (074541)

Argued March 2, 2015 -- Decided August 10, 2015

PATTERSON, J., writing for a majority of the Court.

In these appeals, the Court determines whether N.J.S.A. 2C:52-2(a), which permits the expungement of a
conviction for certain indictable offenses if the person “has been convicted of a crime . . . and . . . has not been
convicted of any prior or subsequent crime,” bars expungement of the convictions of a defendant who pleads guilty
in a single proceeding to multiple offenses that were committed within a short period of time.

J.S. is a thirty-four-year-old former New Jersey resident, who, in 2000, while a sophomore at Kean
University, was arrested after twice selling marijuana to an undercover police officer during a five-day period. The
first sale occurred on June 16, 2001, and involved 25.2 grams of marijuana. The second sale occurred on June 21,
2001, and involved 100 grams of marijuana. J.S was arrested and charged with nine offenses. On May 29, 2001, he
pled guilty to a fourth-degree distribution charge arising from the June 16 sale, and a third-degree distribution
charge arising from the June 21 sale. J.S. was sentenced to a three-year term of noncustodial probation. Five years
after completing his sentence, he filed the expungement petition that is the subject of this appeal.

The trial court granted J.S.’s petition, reasoning that his two offenses were a “single spree” that, under In re
Fontana, 146 N.J. Super. 264, 267 (App. Div. 1976), constituted a solitary “crime.” In an unpublished opinion, the
Appellate Division reversed. Finding that the court’s reliance on Fontana was misplaced because that case applied
an earlier version of the expungement statute, the panel adopted the reasoning of In re Ross, 400 N.J. Super. 117,
123 (App. Div. 2008), in which the Appellate Division applied the current statute and rejected the “one-night spree”
concept. Under N.J.S.A. 2C:52-2(a), the panel concluded that J.S.’s two offenses were “prior or subsequent” to one
another, thus barring expungement. This Court granted J.S.’s petition for certification. 217 N.J. 304 (2014).

G.P.B. is a fifty-two-year-old New Jersey resident and business owner, who, on April 19 and 20, 1999,
committed several offenses in support of a scheme to offer illegal gifts to local officials in a particular municipality,
in order to obtain a public contract for his business and a specific vote on a municipal resolution. G.P.B. pled guilty
to four offenses: one count of third-degree conspiracy to offer gifts to a public servant and three counts of third-
degree offering gifts to a public servant. He was sentenced to a county correctional facility for thirty days and
ordered to perform 100 hours of community service and pay a $10,000 fine. G.P.B. petitioned for expungement on
November 26, 2012, approximately ten years after his convictions.

The trial court granted G.P.B.’s petition, reasoning that his crimes were all part of a continuing conspiracy
to influence a governing body and achieve a single aim, and that the conspiracy linked the charges together as one
“crime” under N.J.S.A. 2C:52-2(a). In a published opinion, the Appellate Division reversed. In re G.P.B., 436 N.J.
Super. 48, 52 (App. Div. 2014). The panel rejected the argument that the one-night spree concept of Fontana
applied to the language of the current statute governing expungement of indictable offenses. Noting that G.P.B. had
pled guilty to four offenses committed on two separate days, the panel concluded that he was not entitled to
expungement. This Court granted G.P.B.’s petition for certification. 219 N.J. 630 (2014).

HELD: The plain language of N.J.S.A. 2C:52-2(a) precludes expungement of convictions when the petitioner has
been convicted of multiple crimes, even when those crimes occurred within a short span of time.

1. The Legislature intended the expungement statute to provide relief to one-time offenders who have dissociated
themselves with unlawful activity. As the law has changed over time, the Legislature has consistently strived to
limit expungement to offenders who have committed no more than an isolated infraction in an otherwise law-
abiding life. As originally enacted in 1931, and as amended in 1936, the statute permitted expungement when the
offender had been convicted only once and “no subsequent conviction” had been entered against him or her. A later
version of the statute with similar language was the subject of the Appellate Division’s analysis in In re Fontana,
146 N.J. Super. 264, 267 (App Div. 1976), wherein the panel imported from sentencing law the concept of a “one-
night spree” in order to expunge the conviction of a defendant who had pled guilty to ten thefts committed over a
nine-day period. Three years after Fontana, in 1979, the Legislature combined various expungement provisions into
Chapter 52 of the new Code of Criminal Justice. At the same time, it amended the language identifying the
requirements for expungement when by enacting N.J.S.A. 2C:52-2. Instead of the former requirement that “no
subsequent conviction has been entered against” the petitioner, N.J.S.A. 2A:164-28 (repealed 1979), the Legislature
limited expungement to offenders who have not “been convicted of any prior or subsequent crime,” N.J.S.A. 2C:52-
2(a). (pp. 12-17)

2. Since the enactment of N.J.S.A. 2C:52-2(a), this Court has not applied the text to a case involving multiple
offenses committed over a short period of time and adjudicated in a single conviction. The first published appellate
opinion analyzing in detail the revised “prior or subsequent crime” language of N.J.S.A. 2C:52-2(a) was In re Ross,
400 N.J. Super. 117, 120-24 (App. Div. 2008), wherein the panel determined that the words “prior” and
“subsequent” modify the term “crime,” not the term “conviction.” Consequently, the panel rejected the Fontana
holding, concluding that two crimes committed on separate occasions are precluded from expungement regardless of
whether they carried a single date of conviction. Two years after the decision in Ross, the Legislature amended the
expungement law to broaden opportunities for expungement in limited situations, such as when in the public interest
or for certain third- and fourth-degree drug offenses. At that time, the Legislature neither altered the “prior or
subsequent crime” language of N.J.S.A. 2C:52-2(a), nor abrogated the holding in Ross. (pp. 18-21)

3. The Court reviews the trial courts’ applications of N.J.S.A. 2C:52-2(a) to the expungement petitions of J.S. and
G.P.B. de novo. In effectuating the legislative intent of the statute, the Court first looks to its plain language,
applying the words’ ordinary meanings and construing them within the context of the surrounding provisions in a
way that would not produce an absurd result. The plain language of the statute authorizes expungement of “a
crime,” not one or more crimes closely related in circumstances or time, while excluding those petitioners who have
been “convicted of any prior or subsequent crime.” The adjectives “prior or subsequent” modify “crime,” not
“conviction.” Moreover, the 1979 change in the statutory language from “subsequent conviction” to “any prior or
subsequent crime” implies a purposeful alteration in the substance of the law. Thus, although N.J.S.A. 2C:52-2(a)
permits expungement of a single conviction arising from multiple offenses if those offenses occurred as part of a
single, uninterrupted criminal event, the provision’s plain language shows that the Legislature clearly intended to bar
expungement when the offender has committed a second crime at an earlier or later time, whether or not those
crimes are resolved in the same judgment of conviction. (pp. 21-29)

4. The plain language of N.J.S.A. 2C:52-2(a) does not permit the expungement of the convictions of either
petitioner in these appeals. J.S. committed two offenses five days apart. Although similar in nature, they were not
committed as part of a single, uninterrupted criminal event. Instead, each was a discrete “crime” within the meaning
of N.J.S.A. 2C:52-2, and the second offense was “subsequent” to the first, thereby rendering J.S. ineligible for
expungement. G.P.B. committed his offenses within a short time frame, as well as all in furtherance of the same
conspiracy. However, each offense consisted of a separate criminal event. Consequently, G.P.B. also is ineligible
for expungement since his crimes, although related, were “prior” and “subsequent” to each other. (pp. 29-30)

5. Although the dissent invokes policy arguments in support of broader access to the remedy of expungement, the
majority notes that the Court’s role is to construe the statute, not to pass judgment on the wisdom of the law or
render an opinion as to its representation of social policy. To that end, should the Legislature determine that
expungement should be available to offenders such as petitioners, convicted of multiple crimes that occurred in
close succession but not concurrently, it may amend N.J.S.A. 2C:52-2 to effect that intent. (pp. 30-31)

The judgment of the Appellate Division is AFFIRMED.

JUSTICE LaVECCHIA, DISSENTING, joined by JUSTICE ALBIN, expresses the views that the
majority’s interpretation of N.J.S.A. 2C:52-2(a) is too restrictive given that the statutory language is susceptible to
more than one plausible construction, and that, given the expungement statute’s remedial purpose, a more generous
reading is appropriate until such time as the Legislature has spoken with sufficient clarity on this issue.

CHIEF JUSTICE RABNER, JUSTICES FERNANDEZ-VINA and SOLOMON, and JUDGE CUFF
(temporarily assigned) join in JUSTICE PATTERSON’s opinion. JUSTICE LaVECCHIA filed a separate
dissenting opinion, in which JUSTICE ALBIN joins.

2
 SUPREME COURT OF NEW JERSEY
A-84 September Term 2013
073376
A-2 September Term 2014
074541

IN THE MATTER OF THE
EXPUNGEMENT PETITION OF J.S.

IN THE MATTER OF THE
EXPUNGEMENT OF THE
CRIMINAL RECORDS OF G.P.B.

Argued March 2, 2015 – Decided August 10, 2015

On certification to the Superior Court,
Appellate Division. (A-84-13, In the Matter
of the Expungement Petition of J.S.)

On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 436 N.J. Super. 48 (App. Div.
2014). (A-2-14, In the Matter of the
Expungement of the Criminal Records of
G.P.B.)

Mark P. Stalford argued the cause for
appellant J.S.

Gerald Krovatin argued the cause for
appellant G.P.B. (Krovatin Klingeman,
attorneys; Mr. Krovatin and Ernesto
Cerimele, on the brief).

Ian D. Brater, Special Deputy Attorney
General Acting Assistant Prosecutor, argued
the cause for respondent State of New Jersey
(Christopher J. Gramiccioni, Acting Monmouth
County Prosecutor, attorney).

1
 Kelly Anne Shelton, Assistant Prosecutor,
argued the cause for respondent State of New
Jersey (Richard T. Burke, Warren County
Prosecutor, attorney).

JUSTICE PATTERSON delivered the opinion of the Court.

These appeals present a question of statutory

interpretation. The Court construes N.J.S.A. 2C:52-2(a), a

component of the statutory scheme that authorizes the

expungement of the records of certain criminal convictions under

conditions established by the Legislature. That provision

permits the expungement of a conviction for certain indictable

offenses if the petitioner “has been convicted of a crime . . .

and . . . has not been convicted of any prior or subsequent

crime[.]” N.J.S.A. 2C:52-2(a). The Court determines whether

the statutory language bars expungement of the convictions of a

defendant who pleads guilty in a single proceeding to multiple

offenses that were committed within a short period of time.

Petitioner J.S. pled guilty to two drug offenses committed

within five days of one another. Petitioner G.P.B. pled guilty

to four offenses arising from his attempt, in several

communications over a two-day period, to offer political

contributions to public officials in exchange for an award of

public contracts or a negative vote on a municipal resolution.

After serving their sentences, both petitioners sought

expungement of their criminal records. In each proceeding, the

2
trial court granted the expungement petition, reasoning that

each petitioner’s closely-related offenses constituted a single

“crime” within the meaning of N.J.S.A. 2C:52-2(a). In each

case, an appellate panel reversed the trial court’s

determination, construing N.J.S.A. 2C:52-2(a) to bar expungement

when the petitioner committed multiple offenses on separate

occasions, even when those offenses occurred in quick

succession.

We affirm the Appellate Division’s decisions in both

appeals. We construe the plain language of N.J.S.A. 2C:52-2(a)

to preclude expungement when the petitioner has been convicted

of multiple crimes, even when those crimes occurred within a

short span of time. Our interpretation of N.J.S.A. 2C:52-2(a)

is supported by the Legislature’s decision to amend the statute

following an Appellate Division decision that permitted

expungement of multiple convictions arising from a short-term

“spree” of offenses. We conclude that, as it is currently

drafted, N.J.S.A. 2C:52-2(a) does not authorize expungement of

the criminal records of individuals who are in the position of

petitioners. If the Legislature determines that expungement

should be available to such individuals, it can amend the

statute to clarify its intent in that regard.

I.

A.

3
 J.S. is a thirty-four-year-old former New Jersey resident,

who now lives in Florida. Before moving, he worked as a manager

in the health care field. In June 2000, when J.S. was a

sophomore at Kean University, he was arrested after twice

selling marijuana to an undercover police officer during a five-

day period. The first sale occurred on June 16, 2001, and

involved 25.2 grams of marijuana. The second sale occurred on

June 21, 2001, and involved 100 grams of marijuana.1

J.S. was arrested and charged with a total of nine

offenses: one count of second-degree distribution of a

controlled dangerous substance (CDS) while on or within five

hundred feet of a public park, N.J.S.A. 2C:35-7.1(a); two counts

of third-degree possession of a CDS with intent to distribute

while on or within 500 feet of a public park, N.J.S.A. 2C:35-

7.1(a); one count of third-degree possession of a CDS with

intent to distribute, N.J.S.A. 2C:35-5(b)(11); one count of

third-degree distribution of a CDS, N.J.S.A. 2C:35-5(b)(11); one

count of third-degree distribution of a CDS while on or within

500 feet of a public park, N.J.S.A. 2C:35-7.1(a); one count of

fourth-degree possession of a CDS with intent to distribute,

N.J.S.A. 2C:35-5(b)(12); one count of fourth-degree distribution

1 J.S. represented in his affidavit in support of his petition
for expungement that his arrests followed a “horrible decision”
to obtain marijuana for a “co-worker” in transactions which
generated no profit.
4
of a CDS, N.J.S.A. 2C:35-5(b)(12); and one count of fourth-

degree possession of a CDS, N.J.S.A. 2C:35-10(a)(3). J.S. was

also issued a summons charging him with two counts of disorderly

persons marijuana possession, N.J.S.A. 2C:35-10(a)(4). Four of

the charges arose from J.S.’s sale of marijuana on June 16,

2001, and the remaining five charges arose from J.S.’s sale of

marijuana on June 21, 2000.

On May 29, 2001, J.S. pled guilty to a fourth-degree

distribution charge, arising from his June 16, 2001 sale of

marijuana, and to a third-degree distribution charge, arising

from his June 21, 2000 sale of marijuana. Thus, J.S.’s

convictions arose from two drug distribution offenses that

involved small quantities of marijuana and occurred five days

apart. J.S. was sentenced to a three-year term of noncustodial

probation. He completed his sentence on February 8, 2007, and

has paid the fees assessed by the sentencing court.

Five years after completing his sentence, J.S. filed the

expungement petition that is the subject of this appeal. He

stated in his supporting affidavit that he was interested in

pursuing a nursing degree, but had not yet applied to nursing

school because he anticipated that his criminal record would bar

a career in nursing. The State opposed the petition, arguing

that J.S. was not eligible for expungement because his

convictions arose from two offenses committed five days apart.

5
 The trial court held a hearing and granted J.S.’s

expungement petition. It reasoned that J.S.’s two offenses

constituted a “single spree,” and that under the Appellate

Division’s decision in In re Fontana, 146 N.J. Super. 264, 267

(App. Div. 1976), those offenses constituted a solitary “crime.”

The trial court concluded that J.S. had no conviction for a

“prior or subsequent crime” for purposes of N.J.S.A. 2C:52-2(a).

Because only five years had passed since the completion of

J.S.’s sentence of probation, he was ineligible for expungement

under the original version of N.J.S.A. 2C:52-2(a), which

mandates a ten-year period before an offender may seek

expungement. Instead, the trial court granted J.S.’s petition

under two provisions added to the statute in a 2010 amendment.

See L. 2009, c. 188. The court found that J.S. satisfied the

“public interest” prong of N.J.S.A. 2C:52-2(a)(2), which

requires “the passage of five years[,] no additional

convictions[,] and a finding that expungement is in the public

interest,” In re Kollman, 210 N.J. 557, 571 (2012). The trial

court also relied on N.J.S.A. 2C:52-2(c), which permits

expungement of a conviction for the sale of twenty-five grams of

marijuana or less despite the general bar on expungement of

convictions “for the sale or distribution of a [CDS] or

possession thereof with intent to sell[.]” N.J.S.A. 2C:52-

2(c)(1). The court ordered that J.S.’s criminal record be

6
expunged, subject to limitations and exceptions set forth in the

expungement statute, N.J.S.A. 2C:52-1 to -32.

The State appealed. In an unpublished opinion, the

Appellate Division reversed the trial court’s order of

expungement. The panel held that the trial court had improperly

relied on Fontana, supra, 146 N.J. Super. at 267, because

Fontana applied an earlier version of the expungement statute,

N.J.S.A. 2A:164-28, containing language distinct from that of

N.J.S.A. 2C:52-2(a). Instead, the panel adopted the reasoning

of another appellate panel, applying the current expungement

statute and rejecting the “one-night spree” concept. See In re

Ross, 400 N.J. Super. 117, 123 (App. Div. 2008). Deeming the

statutory text clear and unambiguous, the panel held that J.S.’s

two offenses were “prior or subsequent” to one another, thus

barring expungement in his case.

We granted certification. 217 N.J. 304 (2014).

B.

Petitioner G.P.B. is a fifty-two-year-old New Jersey

resident. He owns an environmental planning and land

development consulting company. On April 19 and 20, 1999,

G.P.B. committed several offenses in support of a scheme to

offer illegal gifts to local officials in a particular

municipality, in order to obtain a public contract for his

business and a specific vote on a municipal resolution.

7
 On April 19, 1999, G.P.B. and another individual had

several conversations in furtherance of a conspiracy to carry

out this scheme. G.P.B. and his co-conspirator spoke by

telephone with the town’s mayor, and offered him a $24,000

contribution to his county political party. In exchange, the

mayor was asked to select G.P.B.’s company for several public

contracts. In the alternative, G.P.B. and his co-conspirator

offered the mayor a $10,000 contribution in exchange for

selecting the company for all but one of the municipal

contracts.

The same day, G.P.B. and his co-conspirator spoke by

telephone in separate conversations with two members of the town

council in the same municipality. G.P.B. offered each of the

council members a $5000 campaign contribution in exchange for a

negative vote on a municipal resolution, which would have

awarded a contract to a competing business. The resolution was

scheduled to be voted on the following day.

On April 20, 1999, the day of the scheduled vote, G.P.B.

advised at least one of the council members that he would be

provided with part of the money in advance of the vote. One of

the officials contacted the county prosecutor, and G.P.B. was

promptly arrested.

The State charged G.P.B. with four offenses: one count of

third-degree conspiracy to offer gifts to a public servant and

8
three counts of third-degree offering gifts to a public servant,

N.J.S.A. 2C:5-2, -11; N.J.S.A. 2C:27-6(b) (repealed 2003). In

September 1999, G.P.B. pled guilty to all four offenses. He was

sentenced to a county correctional facility for a term of thirty

days, to be served on weekends. He was also required to serve

100 hours of community service and fined $10,000. He paid his

fine immediately, and completed his sentence of incarceration

and his community service on November 1, 2002.

G.P.B. filed his petition for expungement on November 26,

2012, approximately ten years after his convictions. He argued

that for purposes of N.J.S.A. 2C:52-2(a), his offenses comprised

a single “crime” committed over a forty-eight hour period,

rather than a series of separate offenses. The State opposed

G.P.B.’s petition for expungement, arguing that each of G.P.B,’s

acts constituted a distinct crime and that his offenses were not

consolidated into a single crime by virtue of the admitted

conspiracy. The State maintained that G.P.B. did not meet the

requirements of N.J.S.A. 2C:52-2(a).

The trial court granted G.P.B.’s expungement petition. It

reasoned that G.P.B.’s crimes were all part of a continuing

conspiracy to influence a governing body and achieve a single

aim. The trial court viewed the admitted conspiracy between

G.P.B. and the second individual as linking the charges together

as one “crime” for purposes of N.J.S.A. 2C:52-2(a).

9
 In a published opinion, the Appellate Division reversed the

trial court’s grant of G.P.B.’s expungement petition. In re

G.P.B., 436 N.J. Super. 48, 52 (App. Div. 2014). The panel

rejected the argument that the one-night “crime-spree” concept

of Fontana, supra, 146 N.J. Super. at 267, applied to the

language of the current statute governing expungement of

indictable offenses, N.J.S.A. 2C:52-2. Id. at 51. Noting that

G.P.B. had pled guilty to four offenses on two different days,

it concluded that he was not entitled to expungement. Id. at

50, 52.

We granted G.P.B.’s petition for certification. 219 N.J.

630 (2014).

II.

A.

In support of his appeal, J.S. invokes the legislative

purpose of the expungement statute: to assist the “one-time

offender” who has led an otherwise lawful existence. N.J.S.A.

2C:52-32. He argues that the concept of a “one-time offender”

is not limited to the individual who has committed only a single

unlawful act. J.S. asserts that the term “one-time offender”

encompasses an individual convicted of acts that constitute a

continuing course of conduct, or crime “spree.” He urges the

Court to apply the principle set forth by the Appellate Division

10
in Fontana, on the ground that Fontana furthers the

rehabilitative goal of the expungement law.

The State argues that J.S.’s reliance on Fontana is

misplaced. It asserts that the language of N.J.S.A. 2C:52-2(a)

plainly excludes a petitioner who has committed multiple crimes

in a single “spree.” Although the State urges the Court to

affirm the Appellate Division’s determination, it takes issue

with the Appellate Division’s view that N.J.S.A. 2C:52-2(a) may

permit expungement of multiple crimes committed on the same

date. To the State, the “prior or subsequent crime” language of

the statute evinces the Legislature’s intent to limit

expungement to offenders convicted of a single crime, no matter

how close in time that crime might be to another offense. It

contends that J.S., convicted of two offenses five days apart,

is clearly outside of the parameters of N.J.S.A. 2C:52-2(a).

B.

G.P.B. does not urge the Court to adopt the Appellate

Division’s approach in Fontana or to recognize a crime “spree”

as a sole offense in applying N.J.S.A. 2C:52-2(a). Instead,

G.P.B. argues for a construction of the statute that would

permit the expungement of multiple, interdependent crimes

committed concurrently over a single twenty-four-hour period as

part of a unitary scheme. He focuses on his conviction for

conspiracy, arguing that the conspiracy and its overt acts

11
constitute a single offense, and that he committed no “prior” or

“subsequent” crime.

The State relies on Ross, supra, 400 N.J. Super. at 117, to

counter G.P.B.’s construction of N.J.S.A. 2C:52-2(a). It argues

that because G.P.B. offered gifts to three different public

officials in three separate conversations, he cannot be viewed

as a “one-time offender” who committed a single crime. N.J.S.A.

2C:52-32. The State characterizes each of the four offenses at

issue to be a distinct offense with a “prior” crime, a

“subsequent” crime, or both in G.P.B.’s record. It urges the

Court to affirm the Appellate Division’s determination.

III.

A.

The expungement statute at the heart of these appeals

serves “to eliminate ‘the collateral consequences imposed upon

otherwise law-abiding citizens who have had a minor brush with

the criminal justice system.’” Kollman, supra, 210 N.J. at 568

(quoting In re T.P.D., 314 N.J. Super. 643, 648 (Law Div. 1997),

aff’d o.b., 314 N.J. Super. 535 (App. Div. 1998)). The

Legislature intended the statute to “provid[e] relief to the

one-time offender who has led a life of rectitude and

disassociated himself with unlawful activity[.]” N.J.S.A.

2C:52-32.

12
 From the first iteration of New Jersey’s expungement laws

to the current statutory language, the Legislature has

consistently strived to limit expungement to offenders who have

committed no more than an isolated infraction in an otherwise

law-abiding life. As originally enacted in 1931, and as amended

in 1936, the statute required that the offender have been

convicted only once, and that “no subsequent conviction has been

entered against” the offender. L. 1931, c. 345, § 1; L. 1936,

c. 174, § 1.2 As explained in the legislative history of the

1936 amendment,

[t]he purpose of this act is to assist only
those persons who have one single conviction
against them, and from the time of the
conviction and for a period of ten years
thereafter have lived exemplary lives during
that time and are able to show by their
petition that they have made a complete moral
change.

[Sponsor’s Statement to Assemb. 293 (Feb.
10, 1936).]

A later version of the statute with similar language --

permitting expungement if the offender has “a criminal

conviction” with a suspended sentence or fine, but “no

2 The 1931 statute was limited to offenders whose sentences were
suspended and as to whom twenty years had passed since the
conviction. L. 1931, c. 345, § 1. The 1936 version expanded
the reach of the statute to include cases in which a “minor fine
[was] imposed” and more than ten years had elapsed since the
offender’s conviction. L. 1936, c. 174, § 1.

13
subsequent conviction” entered against him or her -- appeared in

the statute until the Legislature’s 1979 reorganization of the

Criminal Code. N.J.S.A. 2A:164-28 (repealed 1979).3

That statutory language was the subject of the Appellate

Division’s analysis in Fontana, supra, 146 N.J. Super. at 267.

There, the defendant pled guilty in one plea hearing to ten

thefts committed during a nine-day period in February and March

of 1962. Ibid. Reasoning that the statute’s purpose of

“providing an incentive for rehabilitation of a person convicted

of crime” would be furthered by expungement, the Appellate

Division imported from sentencing law the concept of a “one-

night spree”:

The crimes which form the basis of the
convictions all involved the same participants
and were committed within a comparatively
short time. The judgments of conviction on
the pleas of guilty were all entered on the
same day. The criminal conduct can be viewed
as akin to a “one[-]night spree[,]” which has
generally received special consideration in
sentencing, State v. McBride, 127 N.J.

3 Between the 1936 amendment and the Legislature’s 1979
reorganization of the Criminal Code, the expungement statute was
amended several times without revision to this language: once
in 1937, R.S. 2:192-15 (establishing fee payable by petitioner),
once in 1952, see N.J.S.A. 2A:164-28 (repealed 1979), L. 1951,
c. 344 (increasing fine amount to $1000), and once in 1976, L.
1975, c. 383 (revising list of eligible crimes, eliminating
requirement that conviction result in suspended sentence or
fine, and running ten-year expungement timeline from later of
conviction or release from imprisonment or parole). Accord
State v. Hawthorne, 49 N.J. 130, 138-39 (1967) (discussing
evolution of early expungement statute), overruled on other
grounds by State v. Sands, 76 N.J. 127, 147 (1978).
14
 Super. 399 (App. Div. 1974), aff’d 66 N.J. 577
(1975), and the convictions as one conviction
within the intent and meaning of the statute.
Cf. State v. McCall, 14 N.J. 538 (1954); State
v. Johnson, 109 N.J. Super. 69 (App. Div.
1970).

[Id. at 267.]4

Three years after Fontana, as part of a comprehensive

reform of the Criminal Code, the Legislature combined previous

expungement provisions that were found in different criminal

statutes with “others dealing with drug and juvenile offenses

into a single chapter, Chapter 52 of the new Code of Criminal

Justice.” State v. A.N.J., 98 N.J. 421, 425 (1985) (citing L.

4 The sentencing decisions cited by the Fontana panel in its
application of a “one-night spree” concept to the expungement
statute do not buttress the panel’s conclusion. In McBride,
supra, the court mentioned that the crimes at issue were
committed in “one night’s spree,” but it based its reduction of
the defendant’s sentence on his “age and immaturity, including
his cooperation with the police, and his pleas of guilty[.]”
127 N.J. Super. at 402. The Court in McCall, supra, did not
discuss the concept of a one-night spree. 14 N.J. 538. There,
this Court held that convictions for multiple offenses on the
same day constituted a single conviction on “separate occasions”
for purposes of N.J.S.A. 2A:85-12, a habitual-offender statute
governing offenders sentenced for an offense after being
“convicted on 3 separate occasions of high misdemeanors[.]” Id.
at 544, 546-48 (internal quotation marks omitted). Johnson,
supra, similarly involved a sentencing issue unrelated to the
concept of a one-night spree; there, the Appellate Division held
that, under the plain language of the Uniform Narcotic Drug Law,
N.J.S.A. 24:18-47 (repealed 1971), a defendant who committed a
second violation of that statute before being convicted of his
first offense should be sentenced as a first offender, not a
second offender. 109 N.J. Super. at 78. These decisions do not
support the Fontana panel’s construction of the expungement
statute then in effect, N.J.S.A. 2A:164-28 (repealed 1979).
15
1979, c. 178). The legislative committees reviewing the

amendment stated that the revised Chapter 52 “spells out an

equitable system of expungement of indictable and nonindictable

convictions, as well as of arrest records,” and “provides for a

practical administrative procedure” to isolate, but not destroy,

expunged records. S. Judiciary Comm. Statement to S. 3203, at

11 (June 18, 1979); Assemb. Judiciary, Law, Pub. Safety &

Defense Comm. Statement to Assemb. 3279, at 16 (June 28, 1979).

In the revised expungement statute, the Legislature

established a procedure for the filing and determination of a

petition for expungement. L. 1979, c. 178 (codified at N.J.S.A.

2C:52-1 to -32). When a court grants an expungement petition,

“criminal records are extracted and isolated, but not

destroyed.” Kollman, supra, 210 N.J. at 568 (citations

omitted). For most purposes, following expungement, “the

arrest, conviction and any proceedings related thereto shall be

deemed not to have occurred[.]” N.J.S.A. 2C:52-27. However,

expunged records may be used in limited settings. See N.J.S.A.

2C:52-17 to -23, -27 (identifying permitted uses of expunged

records); State v. XYZ Corp., 119 N.J. 416, 421 (1990) (noting

that “a central purpose of the [1979] expungement statute was to

‘broaden[] the reliable base of information that will be

maintained for law enforcement’” (quoting A.N.J., supra, 98 N.J.

at 427-28)).

16
 Significantly, the Legislature amended the language

identifying the requirements for expungement when it enacted

N.J.S.A. 2C:52-2, governing the expungement of indictable

offenses:

In all cases, except as herein provided,
wherein a person has been convicted of a crime
under the laws of this State and who has not
been convicted of any prior or subsequent
crime, whether within this State or any other
jurisdiction, and has not been adjudged a
disorderly person or petty disorderly person
on more than two occasions may, after the
expiration of a period of 10 years from the
date of his conviction, payment of fine,
satisfactory completion of probation or
parole, or release from incarceration,
whichever is later, present a duly verified
petition as provided in section 2C:52-7 to the
Superior Court in the county in which the
conviction was entered praying that such
conviction and all records and information
pertaining thereto be expunged.

[N.J.S.A. 2C:52-2(a); L. 1979, c. 178, § 109.]

Thus, instead of the former requirement that “no subsequent

conviction has been entered against” the petitioner, see, e.g.,

N.J.S.A. 2A:164-28 (repealed 1979), the Legislature limited

expungement to offenders who have not “been convicted of any

prior or subsequent crime,” N.J.S.A. 2C:52-2(a). The

Legislature did not comment on the purpose of that amendment to

the statutory text. S. Judiciary Comm. Statement to S. 3203,

supra, at 11; Assemb. Judiciary, Law, Pub. Safety & Defense

Comm. Statement to Assemb. 3279, supra, at 16.

17
 In the decades since the enactment of N.J.S.A. 2C:52-2(a),

this Court has not applied the statutory text to a case

involving multiple offenses committed over a short period of

time and adjudicated in a single conviction. The issue now

before us was not raised in A.N.J., supra, 98 N.J. at 427, in

which the Court applied a different provision of the expungement

law, N.J.S.A. 2C:52-3, to a defendant with multiple disorderly

persons offenses. In comparing the expungement provision for

disorderly persons offenses with N.J.S.A. 2C:52-2(a)’s treatment

of indictable offenses, the Court commented that “[b]y making

its disqualifier for another ‘crime’ both retrospective and

prospective, the Legislature has frozen the rights of the two-

time criminal.” A.N.J., supra, 98 N.J. at 424-27. Following

that statement, the Court observed in a footnote, “[w]e need not

cast doubt upon the view that a ‘one-night spree’ could still

constitute a one-time offense.” Id. at 427 n.3 (citing Fontana,

supra, 146 N.J. Super. at 267). However, because A.N.J.

involved disorderly persons offenses addressed by N.J.S.A.

2C:52-3, rather than a conviction arising from multiple

indictable offenses committed within a short period of time

under N.J.S.A. 2C:52-2(a), the Court’s holding did not address

the issue that is presented by this appeal. Id. at 427; see

also In re J.N.G., 244 N.J. Super. 605, 609 n.2 (App. Div. 1990)

(citing Fontana and noting that “[t]he State does not question

18
that the three convictions are properly considered as one for

expungement purposes”).

The first published appellate opinion analyzing in detail

the revised “prior or subsequent crime” language of N.J.S.A.

2C:52-2(a) was the Appellate Division’s decision in Ross, supra,

400 N.J. Super. at 120-24. There, the petitioner pled guilty to

one count of third-degree bribery in violation of the statute

then in effect, N.J.S.A. 2C:27-6, based on several bribes

offered to a housing inspector. Id. at 119. He also pled

guilty to one count of fourth-degree false swearing, N.J.S.A.

2C:28-2, arising from false testimony given several months after

the bribery incidents. Ibid. Although the petitioner’s

conviction for false swearing was ineligible for expungement

under N.J.S.A. 2C:52-2(b), he sought to expunge the bribery

conviction, invoking the “one-night spree” doctrine of Fontana.

Id. at 120, 123. Relying on the plain language of N.J.S.A.

2C:52-2(a), the Appellate Division rejected the petitioner’s

argument:

Unquestionably, the words “prior” and
“subsequent” do not modify the term
“conviction.” Instead, they modify the term
“crime,” which leads to the conclusion that if
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. . . . [H]ad the
Legislature intended to permit the result
petitioner urges, it would have used the

19
 language “and who has no prior or subsequent
convictions.”

[Id. at 122.]

The panel concluded that when the Legislature used the term

“subsequent crime” in N.J.S.A. 2C:52-2, “it intended to preclude

expungement of a conviction where an individual commits a second

crime even if the two crimes result in a single sentencing and

conviction date,” thus rejecting the Appellate Division’s

holding in Fontana. Id. at 123-24; see also In re R.Z., 429

N.J. Super. 295, 301-02) (App. Div. 2013) (applying reasoning of

Ross and holding that petitioner bears burden to present prima

facie proof that crimes were committed concurrently, not on

“separate occasions”).

Two years after the Appellate Division’s decision in Ross,

the Legislature amended the expungement law to “broaden

opportunities for expungement.” Kollman, supra, 210 N.J. at

562. The 2010 amendments to the statute created an alternative

pathway for petitioners unable to comply with N.J.S.A. 2C:52-

2(a)’s presumptive ten-year waiting period: expungement under

the “public interest prong” of N.J.S.A. 2C:52-2(a), requiring

“the passage of five years; no additional convictions; and a

finding that expungement is in the public interest.” Id. at 571

(citing N.J.S.A. 2C:52-2(a)(2)). In addition, the Legislature

expanded the law to permit expungement of certain third and

20
fourth-degree CDS offenses, “where the court finds that

expungement is consistent with the public interest, giving due

consideration to the nature of the offense and the petitioner’s

character and conduct since conviction.” N.J.S.A. 2C:52-

2(c)(2); see also Kollman, supra, 210 N.J. at 571-72 (construing

requirements of alternative five-year pathway).

Notably, the Legislature’s 2010 effort to broaden the

expungement opportunities for offenders, particularly

individuals convicted of third- and fourth-degree CDS offenses,

see L. 2009, c. 188, did not include any alteration to the

“prior or subsequent crime” language of N.J.S.A. 2C:52-2(a) or

abrogate the Appellate Division’s construction of that language

in Ross. The provision relevant to this appeal, N.J.S.A. 2C:52-

2(a), remains in the form adopted by the Legislature in 1979.

Compare N.J.S.A. 2C:52-2(a) (current), with L. 1979, c. 178, §

109 (1979 enactment).

B.

In that context, the Court reviews the trial courts’

application of N.J.S.A. 2C:52-2(a) to the expungement petitions

of J.S. and G.P.B. Because both trial courts resolved an issue

of law in construing a statute, their determinations are

reviewed de novo. State v. J.D., 211 N.J. 344, 354 (2012)

(citing State v. Gandhi, 201 N.J. 161, 176 (2010)).

21
 The Court’s interpretation of N.J.S.A. 2C:52-2 is guided by

familiar principles of statutory construction. The Court’s role

“is to effectuate the legislative intent of the expungement

statute.” In re D.H., 204 N.J. 7, 17 (2010) (internal quotation

marks and citations omitted); see also N.J. Dep’t of Children &

Families v. A.L., 213 N.J. 1, 20 (2013).

The Court first looks to the statutory language as “the

best indicator of [the Legislature’s] intent.” DiProspero v.

Penn, 183 N.J. 477, 492 (2005). If the plain language of the

statute is clear and “susceptible to only one interpretation,”

then the Court should apply that construction. Ibid. (citations

omitted); see also Norman J. Singer & J.D. Shambie Singer, 1A

Sutherland on Statutory Construction § 46:1, at 137-41 (7th ed.

2007) (“[W]here a statutory provision is clear and not

unreasonable or illogical in its operation, a court may not go

outside the statute to give it a different meaning.”). The

statute’s words should generally be read in accordance with

their ordinary meaning. DiProspero, supra, 183 N.J. at 492

(citing Lane v. Holderman, 23 N.J. 304, 313 (1957)). However,

those words should not be construed in a way that would produce

an absurd result. See State v. Lewis, 185 N.J. 363, 369 (2005)

(citing State v. Gill, 47 N.J. 441, 444 (1966)).

A statute should be considered in light of its surrounding

provisions. N.J. Dep’t of Envtl. Prot. v. Huber, 213 N.J. 338,

22
365 (2013) (stating that “we must examine . . . statutory

language sensibly, in the context of the overall scheme in which

the Legislature intended the provision to operate” (citing Merin

v. Maglaki, 126 N.J. 430, 436 (1992)). To resolve

inconsistencies among different sections of the expungement act,

the Court must “seek the interpretation that will make the most

consistent whole of the statute.” A.N.J., supra, 98 N.J. at 424

(citing Poswiatowski v. Standard Chlorine Chem. Co., 96 N.J.

321, 329-30 (1984)); see also In re Petition for Referendum on

City of Trenton Ordinance 09-02, 201 N.J. 349, 359 (2010)

(noting that Court must read statute’s sections “‘to provide a

harmonious whole’” (quoting Burnett v. Cnty. of Bergen, 198 N.J.

408, 421 (2009)).

The plain language of N.J.S.A. 2C:52-2(a) expresses the

Legislature’s intent to permit expungement of a single

conviction arising from multiple offenses only if those offenses

occurred as part of a single, uninterrupted criminal event.

Using the singular rather than the plural form, the statute

authorizes expungement of “a crime under the laws of this State”

-- not one or more crimes closely related in circumstances or in

time. N.J.S.A. 2C:52-2(a). With the expansive adjective “any,”

N.J.S.A. 2C:52-2(a) excludes petitioners who have been

“convicted of any prior or subsequent crime.” The statute’s

import is clear: no matter how many offenses are resolved by

23
one conviction, expungement is available only for a single

“crime” and is unavailable if another “crime” took place before

or after the offense to be expunged. See Ross, supra, 400 N.J.

Super. at 122 (noting that Legislature’s choice to modify

“crime,” rather than “conviction,” with adjectives “prior” and

“subsequent,” supports conclusion that expungement is

unavailable for crimes committed on separate occasions).

With a simple adjustment of its language, the Legislature

could have authorized expungement of the records of a crime,

even if the petitioner committed a prior or subsequent crime

that was related, or close in time, to the crime to be expunged.

Instead, in the broadest possible terms, the Legislature

excluded from expungement a crime that preceded, or was followed

by, any other crime.

That conclusion is underscored by the contrasting language

used by the Legislature when it described multiple offenses

committed on different occasions. For example, the statute

authorizes expungement for an indictable offense if the

petitioner “has not been convicted of any prior or subsequent

crime . . . and has not been adjudged a disorderly person or

petty disorderly person on more than two occasions.”5 N.J.S.A.

5 Contrary to the view of our dissenting colleagues, post at __
(slip op. at 8-9), the Legislature’s language in addressing
expungement of indictable offenses and its approach to
disorderly persons is not parallel, but directly contrasting.
24
2C:52-2(a). Another provision of the statutory scheme allows

expungement of a disorderly persons offense if the petitioner,

among other requirements, demonstrates that he or she has not

been convicted “of another three disorderly persons or petty

disorderly persons offenses[.]” N.J.S.A. 2C:52-3. Thus, when

the Legislature has decided to allow expungement notwithstanding

the presence of multiple offenses in the petitioner’s record, it

has had no difficulty expressing that intent.

Moreover, the Legislature’s 1979 amendment of the statutory

language is significant to our analysis. L. 1979, c. 178.

Under the language of the prior statute, the question was

whether the petitioner had a “subsequent conviction.” N.J.S.A.

2A:164-28 (repealed 1979). Although there is sparse guidance as

to the meaning of that language in the legislative history of

the predecessor expungement statute, the statement accompanying

the first amendment to the statute in 1936 indicates that the

Legislature’s purpose in enacting that version was to provide

relief to someone with “one single conviction.” Sponsor’s

Statement to Assemb. 293, supra. In that context, where the

statutory language and legislative history require only one

conviction, but are silent as to whether that conviction may

See N.J.S.A. 2C:52-2(a); 2A Sutherland on Statutory
Construction, supra, § 46:6, at 261-63 (“Different words used in
the same, or a similar, statute are assigned different meanings
whenever possible.”).
25
have adjudicated multiple offenses, the Appellate Division

adopted the “one-night spree” concept in Fontana, supra, 146

N.J. Super. at 267.

Thereafter, in its 1979 amendment to the statute, the

Legislature altered the relevant inquiry. Instead of precluding

expungement if a petitioner has a “subsequent conviction,”

N.J.S.A. 2A:164-28 (repealed 1979), the current statute bars

expungement if the petitioner has a conviction for “any prior or

subsequent crime.” N.J.S.A. 2C:52-2(a). Although the

Legislature did not identify Fontana as a factor in that

amendment, it is presumed to have been “‘thoroughly conversant

with its own [prior] legislation and the judicial construction

of its statutes.’” Nebesne v. Crocetti, 194 N.J. Super. 278,

281 (App. Div. 1984) (quoting Brewer v. Porch, 53 N.J. 167, 174

(1969)); see also Kollman, supra, 210 N.J. at 572 (citing “long-

standing canon of statutory construction” presuming

Legislature’s familiarity with “judicial interpretation of its

enactments”); State v. Chapland, 187 N.J. 275, 291 (2006)

(stating that “the Legislature is presumed to be aware of the

judicial construction placed on an enactment”). As the Court

noted in Nagy v. Ford Motor Co., 6 N.J. 341, 348 (1951), “a

change of language in a statute ordinarily implies a purposeful

alteration in substance of the law.” (internal quotation marks

omitted).

26
 Thus, the Legislature that enacted N.J.S.A. 2C:52-2 is

presumed to have been aware of the judicial construction of the

expungement statute’s earlier version: the Appellate Division’s

holding in Fontana that a “spree” of offenses could be expunged.

See Ross, supra, 400 N.J. Super. at 123-24 (holding that, when

it enacted N.J.S.A. 2C:52-2, Legislature “deliberately chose to

alter the more expansive view of expungement that had existed

under N.J.S.A. 2A:164-28 and that was exemplified by [the]

decision in Fontana”). Notably, the Legislature has not further

amended the statute since the Appellate Division in Ross

rejected the “one-night spree” concept.

In their construction of the statute, our dissenting

colleagues “view as most relevant the legislative focus on the

verb ‘has been convicted’ rather than the majority’s focus on

the timing of the crime.” Post at __ (slip op. at 7). It is

not the majority, but the Legislature, that has focused the

inquiry on the “timing of the crime.” In the statute’s

disqualifying phrase “and who has not been convicted of any

prior or subsequent crime,” the adjectives “prior or subsequent”

modify the noun “crime,” not the noun “conviction.” N.J.S.A.

2C:52-2(a). The Legislature could have written the statute as

our dissenting colleagues describe it; indeed the prior statute,

N.J.S.A. 2A:164-28, used the term “subsequent conviction” to

convey a meaning close to that urged in the dissent. Our task,

27
however, is to construe the statue as it is written, and the

language of N.J.S.A. 2C:52-2(a) makes clear the Legislature’s

intent.

In short, notwithstanding its substantial expansion of

opportunities for expungement in other respects in its 1979 and

2010 amendments,6 the Legislature evidently sought a stricter

limit on the expungement of multiple offenses when it amended

N.J.S.A. 2C:52-2 to add the term “prior or subsequent crime.”

L. 1979, c. 178. The Legislature limited expungement to a

single “crime.” N.J.S.A. 2C:52-2(a). A single crime does not

necessarily result in a single offense, given that multiple

charges may arise from one crime. Rather, it involves a single,

uninterrupted criminal event or incident.7 The Legislature

clearly intended to bar expungement when the offender has

6 N.J.S.A. 2C:52-2 was amended on other occasions since 1979, but
only the 2010 amendment expanded the availability of
expungement. L. 2009, c. 188 (2010 amendment); see also L.
2013, c. 136 (adding offenses not available for expungement); L.
1994, c. 133 (Megan’s Law convictions not subject to
expungement); L. 1993, c. 301 (precluding from expungement
convictions by persons holding public office where crime
involved such office); L. 1989, c. 300 (requiring notification
of State Board of Medical Examiners upon receipt of petition for
expungement in certain circumstances).
7 Our dissenting colleagues misconstrue our holding to
“preclude[] a person from even applying for expungement if he or
she happens to plead to two counts -- as opposed to one count --
of an indictment as part of an agreement.” Post at __ (slip op.
at 6). This is not our holding; a single crime is subject to
expungement under N.J.S.A. 2C:52-2(a), even if it results in
multiple counts.
28
committed a second crime at an earlier or later time, whether or

not those crimes are resolved in the same judgment of

conviction. See ibid.; Ross, supra, 400 N.J. Super. at 123-24.

C.

The plain language of N.J.S.A. 2C:52-2(a) does not permit

the expungement of the convictions of either petitioner in these

appeals.

J.S. committed two offenses five days apart. His offenses

were similar; each consisted of a sale of a small quantity of

marijuana to an undercover officer and each led to a guilty plea

to a distribution charge. J.S.’s crimes, however, were not

committed as part of a single, uninterrupted criminal event.

Instead, each was a discrete “crime” within the meaning of

N.J.S.A. 2C:52-2(a), and the second offense was “subsequent” to

the first. J.S. is not eligible for expungement under the

statute’s plain language.

G.P.B. also committed his offenses within a short time

frame -- in his case, the span of two days. His four offenses

were committed in furtherance of the same conspiracy to

influence municipal officials by offering gifts in exchange for

votes on public questions before those officials. Each offense,

however, consisted of a separate criminal event. Each of the

communications that gave rise to the charges of offering gifts

to a public servant occurred at a different time and in a

29
separate telephone call to the public official whom G.P.B.

sought to influence. His crimes, although related, were “prior”

and “subsequent” to one another, and they are therefore not

subject to expungement under N.J.S.A. 2C:52-2.

D.

Our dissenting colleagues invoke policy arguments in

support of broader access to the remedy of expungement. Post at

__ (slip op. at 1-2, 12-13). Our role, however, is to construe

the expungement statute, not to “pass judgment on the wisdom of

a law or render an opinion on whether it represents sound social

policy.” Caviglia v. Royal Tours of Am., 178 N.J. 460, 476

(2004) (citing State Farm Mut. Auto. Ins. Co. v. State, 124 N.J.

32, 45 (1991)). As the Court has noted, “‘[i]t goes without

saying that the wisdom, good sense, policy and prudence (or

otherwise) of a statute are matters within the province of the

Legislature and not of the Court.’” State v. Gerald, 113 N.J.

40, 84-85 (1988) (quoting White v. Twp. of N. Bergen, 77 N.J.

538, 554-55 (1978), superseded by constitutional amendment as

stated in State v. Cruz, 163 N.J. 403, 411-12 (2000)). If the

Legislature determines that expungement should be available to

offenders such as petitioners, convicted of multiple crimes that

occurred in close succession but not concurrently, it has the

authority to amend N.J.S.A. 2C:52-2 to effect that intent.

IV.

30
 The judgment of the Appellate Division is affirmed.

CHIEF JUSTICE RABNER, JUSTICES FERNANDEZ-VINA and SOLOMON,
and JUDGE CUFF (temporarily assigned) join in JUSTICE PATTERSON’s
opinion. JUSTICE LaVECCHIA filed a separate dissenting opinion,
in which JUSTICE ALBIN joins.

31
 SUPREME COURT OF NEW JERSEY
A-84 September Term 2013
073376
A-2 September Term 2014
074541

IN THE MATTER OF THE
EXPUNGEMENT PETITION OF J.S.

IN THE MATTER OF THE
EXPUNGEMENT OF THE
CRIMINAL RECORDS OF G.P.B.

JUSTICE LaVECCHIA, dissenting.

It is reported that almost one out of every three Americans

has been arrested by age twenty-three. Amy L. Solomon, In

Search of a Job: Criminal Records as Barriers to Employment,

NIJ J., June 2012, at 42, 43 (citing Robert Brame et al.,

Cumulative Prevalence of Arrest from Ages 8 to 23 in a National

Sample, 129 Pediatrics 21, 21-27 (2012)). The future prospects

for such individuals are not encouraging. Two National

Institute of Justice-funded studies found that “a criminal

record reduces the likelihood of a job callback or offer by

approximately [fifty] percent.”1 Solomon, supra, at 43 (finding

1 “The National Institute of Justice [is] the research,
development and evaluation agency of the U.S. Department of
Justice[,] . . . dedicated to improving knowledge and
understanding of crime and justice issues through science.”
About NIJ, Nat’l Inst. of Just.,
http://nij.gov/about/Pages/welcome.aspx (last modified Feb. 25,
2013).
1
effect to be disproportionately felt among African Americans and

Latinos). A study by the American Bar Association found “more

than 38,000 statutes that impose collateral consequences on

people convicted of crimes,” and that eighty percent of those

statutes serve as functional “denial[s] of employment

opportunities.” Solomon, supra, at 44 (citing Am. Bar Ass’n,

Nat’l Inventory of the Collateral Consequences of Conviction,

http://www.abacollateralconsequences.org/ (last visited July 22,

2015)). Another study demonstrated that a majority of employers

“probably” or “definitely” would not hire applicants with

criminal records. Solomon, supra, at 46 (internal quotation

marks omitted) (citing Harry J. Holzer et al., Perceived

Criminality, Criminal Background Checks, and the Racial Hiring

Practices of Employers, 49 J.L. & Econ. 451, 453-54 (2006)); see

also Michelle Natividad Rodriguez & Maurice Emsellem, The Nat’l

Emp’t Law Project, 65 Million “Need Not Apply”: The Case for

Reforming Criminal Background Checks for Employment, 13-18

(2011), available at

www.nelp.org/content/uploads/2015/03/65_Million_Need_Not_Apply1.

pdf (finding frequent “no-hire” policies among major employers

on Craigslist for applicants with one or more arrest or criminal

conviction).

For many people with criminal convictions, the availability

of expungement is essential to their return to gainful lives.

2
Yet, the majority adopts a restrictive approach in its

interpretation of the section of the expungement statute that

addresses the threshold for being eligible even to apply for

expungement. In my view, that statutory language does not

plainly support the approach chosen by the majority. This is

remedial legislation. The ambiguity in the eligibility

provision of the expungement scheme permits a broader

construction than that taken by the Court today. In taking a

narrow view of who is eligible to apply for expungement

consideration, the majority reads the statute too restrictively.

I therefore respectfully dissent.

I.

The focus in this matter is on N.J.S.A. 2C:52-2(a) (Section

2(a)), which addresses only eligibility to apply for

expungement. In pertinent part, it provides:

In all cases, except as herein provided,
wherein a person has been convicted of a crime
under the laws of this State and who has not
been convicted of any prior or subsequent
crime, whether within this State or any other
jurisdiction, and has not been adjudged a
disorderly person or petty disorderly person
on more than two occasions may, after the
expiration of a period of [ten] years from the
date of his conviction, payment of fine,
satisfactory completion of probation or
parole, or release from incarceration,
whichever is later, 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
conviction was entered praying that such

3
 conviction and all records and information
pertaining thereto be expunged.

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

Section 2(a) was enacted in 1979 when the Legislature

consolidated and amended previously scattered statutes

addressing expungement to create a comprehensive scheme

governing expungement collected in Chapter 52 of New Jersey’s

new criminal code. See L. 1979, c. 178, §§ 107 to 139 (codified

as amended at N.J.S.A. 2C:52-1 to -32). In doing so, the

Legislature sought to create “an equitable system of

expungement” with “a practical administrative procedure” to

ensure the isolation of expunged records. S. Judiciary Comm.

Statement to S. No. 3203, at 11 (June 18, 1979); Assemb.

Judiciary, Law, Pub. Safety & Def. Comm. Statement to Assemb.

No. 3279, at 16 (June 28, 1979).

Prior to the 1979 amendment, the pre-title-2C expungement

statute, N.J.S.A. 2A:164-28, provided as follows in respect of

eligibility to apply for expungement:

In all cases wherein a criminal conviction has
been entered against any person whereon
sentence was suspended, or a fine imposed of
not more than $1,000, and no subsequent
conviction has been entered against such
person, it shall be lawful after the lapse of
[ten] years from the date of such conviction
for the person so convicted to present a duly
verified petition to the court wherein such
conviction was entered, setting forth all the
facts in the matter and praying for the relief
provided for in this section.

4
 [(Emphasis added).]

Nothing in the legislative history sheds light on the

Legislature’s reason for the changed wording in Section 2(a)’s

description of who is eligible to apply for expungement.

In my view, Section 2(a)’s meaning is ambiguous. The

statute’s prescription that the application process for

expungement is open to “a person [who] has been convicted of a

crime . . . and who has not been convicted of any prior or

subsequent crime” does not provide a clear answer to whether

someone with a judgment of conviction for multiple offenses is

eligible to apply for expungement. That quoted language does

not compel a construction that permits only a person with a

conviction for a single-count offense to apply. The legislative

choice of language becomes less clear in its meaning in this

respect when one considers that the statute’s self-proclaimed

purpose is to provide relief for the “one-time offender,”

N.J.S.A. 2C:52-32, and that a single criminal transaction can

give rise to multiple counts. See State v. Yarbough, 100 N.J.

627, 638, 645 (1985) (acknowledging that “multiple charges may

stem from one incident, as when one possesses and then sells a

narcotic drug,” or from pursuit of single objective (citation

and internal quotation marks omitted)); see also Black’s Law

Dictionary 1188 (9th ed. 2009) (defining “separate offense” as

5
including “[a]n offense arising out of a different event

entirely from another offense under consideration”). Indeed,

the meaning of someone “who has not been convicted of any prior

or subsequent crime” is not clear on its face, at least not as

clear as one might hope in order to justify narrowly reading a

remedial statute. See Maglies v. Estate of Guy, 193 N.J. 108,

123 (2007) (recognizing remedial legislation is “deserving of

liberal construction” (citation and internal quotation marks

omitted)); see also 3 Norman J. Singer & J.D. Shambie Singer,

Sutherland Statutory Construction § 60:1 at 250 (7th ed. 2008)

(“Remedial statutes are liberally construed to suppress the evil

and advance the remedy.”).

But to the majority, the language in Section 2(a) is clear

and allows for an interpretation that plainly precludes a person

from even applying for expungement if he or she happens to plead

to two counts –- as opposed to one count -- of an indictment as

part of an agreement. For example, under the majority’s

construction, an individual who pleads to selling a small amount

of drugs to two people on a certain day has no right to an

evaluation of the merits of the expungement application. In

contrast, an individual in a neighboring county who is allowed

to plead to one count of distribution under comparable

circumstances may apply for expungement. That inequity is not

clearly indicated from the plain language of the statute.

6
 The majority construes the statute to limit applications for

expungement of an indictable offense to those individuals who

are convicted of a single count, or to a “single, uninterrupted

criminal event or incident.” Ante at ___ (slip op. at 23). To

be sure, the majority’s “single, uninterrupted criminal event or

incident” elaboration highlights the lack of clarity to its

approach that centers on the term “crime” when applying the

expungement statute. And, it demonstrates the majority’s need

to address the ambiguity in the phrase “has been convicted of a

crime,” a point that supports the view that there is uncertainty

about the legislative language. The majority’s interpretation

is not the only reasonable construction of the statute.

I view as most relevant the legislative focus on the verb

“has been convicted” rather than the majority’s focus on the

timing of the crime. Under the equally plausible construction

that focuses on the time of conviction as the most relevant

consideration, the number or order of the underlying facts of

the counts for which a person is indicted and for which

convicted are not controlling at the application stage. The

statute fairly may be read to permit the filing of an

application for expungement of an indictable offense or offenses

when a person has not been convicted of a crime prior or

subsequent to the judgment of conviction that he or she seeks to

expunge. The judgment of conviction may contain multiple

7
counts; however, on the day of conviction, the person has not

been previously or subsequently convicted of another offense.

He or she is a “one-time offender.” See N.J.S.A. 2C:52-32. I

would hold that such individuals are eligible to apply for

expungement and have their application vetted under the many

other provisions that instruct courts on how to evaluate the

merits of the application.

Before leaving the topic of the statute’s language and

whether it plainly precludes the interpretation I advance, it

bears noting that the language in Section 2(a) pertaining to

disorderly persons convictions supports the conclusion that the

focus should be on the date of entry of the judgment of

conviction itself, rather than on the number of counts contained

in the judgment of conviction. Section 2(a) also specifies

that, in order to qualify and apply for an expungement, a person

must be able to assert that he or she “has not been adjudged a

disorderly person or petty disorderly person on more than two

occasions.” N.J.S.A. 2C:52-2(a) (emphasis added). That clause

focuses on occasions of conviction (date the judgment was

entered), rather than the counts contained therein. Again, I

view the legislative focus to be on the verb “adjudged” and its

timing, not on how many incidents were involved in the

adjudication. The parallelism is notable because the

Legislature, when setting forth eligibility to apply for

8
expungement, was focused on when and how many times the person

was adjudged disorderly, not on how many underlying offenses

there were. Given the ambiguity in Section 2(a) in respect of

disqualifying criminal convictions, the clearly worded language

regarding disorderly persons adjudications should influence and

support our reading of the statute, not undercut it as the

majority views the two requirements.

Furthermore, a less restrictive reading of Section 2(a) than

that chosen by the majority is particularly appropriate given

that Section 2(a) governs the threshold determination of whether

people can even apply for expungement, not whether a petition

will be granted. Reading that threshold provision narrowly is

out of step with the expungement statute’s remedial nature and

ignores that there are many other bases for disqualifying

applicants.

As remedial legislation, the expungement statute should be

interpreted liberally. See Miah v. Ahmed, 179 N.J. 511, 525

(2004) (explaining that remedial goals of Anti-Eviction Act

merit liberal construction); Lindquist v. City of Jersey City

Fire Dep’t, 175 N.J. 244, 258 (2003) (noting policy of liberally

construing Workers’ Compensation Act in light of remedial

purpose). We have recognized the remedial aspects to

expungement on prior occasions. Expungement serves “to

eliminate ‘the collateral consequences imposed upon otherwise

9
law-abiding citizens who have had a minor brush with the

criminal justice system.’” In re Kollman, 210 N.J. 557, 568

(2012) (quoting In re T.P.D., 314 N.J. Super. 643, 648 (Law Div.

1997), aff’d o.b., 314 N.J. Super. 535 (App. Div. 1998)). In

Kollman, we noted that the “Legislature’s goals” in passing the

expungement statute were “to reward efforts at rehabilitation

and facilitate reentry when appropriate, and to provide relief

to certain one-time offenders who have rejected their criminal

past.” Id. at 580 (citing N.J.S.A. 2C:52-32).

By allowing for the less strict interpretation of who may

apply for expungement, the public interest is not disserved.

The statutory scheme provides other bases for denying

expungement for an indictable offense that safeguard the public

interest by making convictions for certain serious offenses

public knowledge and preventing serial offenders from abusing

the expungement process. Convictions for certain serious crimes

cannot be expunged. See N.J.S.A. 2C:52-2(b) (precluding

expungement of convictions for criminal homicide, defined in

N.J.S.A. 2C:11-2 (except death by auto, N.J.S.A. 2C:11-5);

kidnapping, N.J.S.A. 2C:13-1; human trafficking, N.J.S.A. 2C:13-

8; sexual assault or aggravated sexual assault, N.J.S.A. 2C:14-

2; robbery, N.J.S.A. 2C:15-1; arson and related offenses,

N.J.S.A. 2C:17-1; and numerous other offenses). N.J.S.A. 2C:52-

14 outlines grounds for which an application “shall be denied.”

10
Under N.J.S.A. 2C:52-14(a), expungement must be denied when

“[a]ny statutory prerequisite, including any provision of this

chapter, is not fulfilled or there is any other statutory basis

for denying relief.” Denial is also required under N.J.S.A.

2C:52-14(b), when “[t]he need for the availability of the

records outweighs the desirability of having a person freed from

any disabilities as otherwise provided in this chapter.” And,

N.J.S.A. 2C:52-14(e) precludes a court from granting a petition

where “[a] person has had a previous criminal conviction

expunged regardless of the lapse of time between the prior

expungement, or sealing under prior law, and the present

petition.”

Finally, the construction advanced in this separate opinion

aligns with the fact that the legislative history of Section

2(a) provides no indication that the Legislature intended the

change in wording from the pre-amendment statute to alter the

statute’s meaning or to eliminate the approach taken in In re

Fontana, 146 N.J. Super. 264, 266-67 (App. Div. 1976), which

permitted an application to be considered, and even granted,

notwithstanding that a criminal spree of short duration resulted

in convictions for more than one offense.2 The legislative

2 The majority reads much into the legislative change that took
the word “conviction,” used as a noun in the pre-title-2C
statute, and used it as a verb in N.J.S.A. 2C:52-2(a). There is
nothing to support that that language change meant to sub
11
history of the statute does not indicate a specific intent to

eliminate the Fontana approach to a one-time spree of multiple

offenses charged and pled in a single conviction, when at the

time the judgment of conviction for the offenses was entered,

the individual had not previously been convicted and has not

since been convicted of another criminal offense.

Notably, shortly after the passage of the amended statute,

this Court did not view the new language as abrogating the

Fontana “one-night spree” doctrine. State v. A.N.J., 98 N.J.

421, 427 n.3 (1985). A.N.J. is the only time this Court has

commented, albeit in dicta, on Fontana’s spree doctrine, or on

the ability, generally, to expunge multiple convictions under

N.J.S.A. 2C:52-2(a). Ibid. In that case, the Court

acknowledged that “[b]y making its disqualifier for another

‘crime’ both retrospective and prospective [in the 1979

amendment], the Legislature has frozen the rights of the two-

time criminal.” Id. at 427. However, in a footnote to that

sentence, the Court, citing Fontana, stated: “We need not cast

doubt upon the view that a ‘one-night spree’ could still

constitute a one-time offense.” Id. at 427 n.3.

silentio abandon the Fontana approach. It may have signaled
simply what is posited in this opinion: that the statute
permits the filing of an application for expungement when the
person has not been convicted of a crime prior or subsequent to
the judgment of conviction that he or she seeks to expunge.
12
 In sum, a fair reading of the statute would permit

applications for expungement for those who have no convictions

prior or subsequent to the judgment of conviction that they seek

to expunge. That reading’s foundation comes from the lack of

clarity in the statutory language; the fact that Section 2(a)

addresses the threshold for eligibility to seek the benefits

that may be available under a remedial statute; the existence of

many other safeguards within the statute to protect the public

interest; and the absence from the statute’s legislative history

of any intent to alter the previous application given to the

pre-amendment statute.

II.

In my view, we need not adopt the rigid approach taken by

the majority. It follows the path set down by the Appellate

Division in In re Ross, 400 N.J. Super. 117, 122-24 (App. Div.

2008), but it is not a path that is compelled. In light of the

serious consequences of not even allowing an individual to apply

for expungement, and considering that the public interest is

fully protected by the layers of review that can support denial

of an expungement application, I would not deprive the

individuals in either of these two appeals the opportunity to

file their applications and to have their expungement

applications addressed on their merits.

13
 The majority strives to prove that theirs is the one true

interpretation of Section 2(a). The point is that Section 2(a)

is susceptible to more than one plausible construction, and,

given the expungement statute’s remedial purpose, a more

generous reading is appropriate. In view of that remedial

purpose, as well as the human consequences and disabilities

affecting so many people resulting from a criminal conviction, I

would read the statute liberally until the Legislature has

spoken with sufficient clarity to deprive so many of their

ability to re-enter society and enjoy productive lives.

I respectfully dissent.

14
 SUPREME COURT OF NEW JERSEY

NO. A-84 SEPTEMBER TERM 2013
NO. A-2 SEPTEMBER TERM 2014

ON CERTIFICATION TO Appellate Division, Superior Court

IN THE MATTER OF THE
EXPUNGEMENT PETITION OF J.S.

IN THE MATTER OF THE
EXPUNGEMENT OF THE
CRIMINAL RECORDS OF G.P.B.

DECIDED August 10, 2015
Chief Justice Rabner PRESIDING
OPINION BY Justice Patterson
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY Justice LaVecchia

CHECKLIST AFFIRM DISSENT
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 5 2