IN THE MATTER OF THE EXPUNGEMENT APPLICATION OF LUIS VELAZQUEZ (350-15, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0788-16T1

IN THE MATTER OF THE
EXPUNGEMENT APPLICATION
OF LUIS VELAZQUEZ.
__________________________________

Submitted July 18, 2017 – Decided July 28, 2017

Before Judges Reisner and Suter.

On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Docket No. 350-
15.

Gluck Walrath, L.L.P., and John Nicholas
Iannuzzi (Iannuzzi and Iannuzi) of the New
York bar, admitted pro hac vice, attorneys for
appellant (Mr. Iannuzzi, of counsel and on the
brief; Robyn B. Gigl, on the brief).

Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Erin M. Campbell,
Assistant Prosecutor, on the brief).

PER CURIAM

Petitioner Luis Velazquez appeals from the August 10, 2016

order denying his application to expunge a conviction. We reverse

the order and remand for reconsideration.

In 2005, petitioner pled guilty to third-degree receiving

stolen property, N.J.S.A. 2C:20-7 (the 2005 conviction). He was
sentenced to two years of probation and fifty hours of community

service, all of which have been satisfied. In 2016, petitioner

made application to expunge the 2005 conviction. See N.J.S.A.

2C:52-2. Petitioner contends the 2005 conviction interferes with

his ability to obtain employment other than as a long-haul trucker.

He would like employment in a job that does not involve so much

travel away from his family.

The Hudson County Prosecutor (the Prosecutor) initially

opposed petitioner's expungement application because petitioner

failed to list in his criminal history a 2012 guilty plea to the

disorderly persons offense of shoplifting, N.J.S.A. 2C:20-

11(c)(4), from Marlboro Township. Petitioner amended the

expungement application to include that guilty plea. In addition

to the 2012 shoplifting conviction and the 2005 conviction,

petitioner listed two other offenses. In 1997, he pled guilty in

the Belleville Municipal Court to shoplifting, N.J.S.A. 2C:20-

11(b)(2). In October 1996, petitioner was charged with the illegal

use of slugs, N.J.S.A. 2C:21-18, and forgery, N.J.S.A. 2C:21-1

(the 1996 offenses). For the 1996 offenses, petitioner was

admitted to Pretrial Intervention (PTI), and successfully

completed the program in November 1997. See R. 3:28.

Petitioner's amended expungement application was opposed by

the Prosecutor, claiming that petitioner was not eligible under

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N.J.S.A. 2C:52-14(f) to expunge the 2005 conviction because of his

past participation in PTI.

Petitioner's application for expungement was denied by order

dated August 10, 2016 without oral argument. In the order, the

court did not make any factual findings or provide legal authority

other than listing three cases: State v. B.C., 235 N.J. Super. 157

(Law Div. 1989); State v. Dylag, 267 N.J. Super. 348 (Law Div.

1993); In re Podias, 284 N.J. Super. 674 (App. Div. 1995), certif.

denied, 143 N.J. 517 (1996). Petitioner did not have the

opportunity to respond to the objection lodged by the Prosecutor.

On appeal petitioner raises the following issues:

Point I: THE PROSECUTOR ERRONEOUSLY APPLIED
THE STATUTE (The Issue Was Not Raised Below
As Appellant Had No Opportunity To Respond To
The Objections Raised By the Prosecutor)

Point II: APPELLANT'S 1996 ARREST WAS FOR
DISORDERLY PERSON CHARGES (The Issue Was Not
Raised Below As Appellant Had No Opportunity
To Respond To The Objections Raised By the
Prosecutor).

Point III: THE COURT BELOW ERRONEOUSLY
DETERMINED PETITIONER'S APPLICATION WAS
BARRED (The Issue Was Not Raised Below As
Appellant Had No Opportunity To Respond To The
Objections Raised By the Prosecutor).

We reverse and remand for reconsideration.

When an application for expungement is made, the

"petitioner has the burden to satisfy the
requirements of the expungement statute[,]" by

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 a preponderance of the evidence. If a
petitioner satisfies that burden, the burden
then shifts to the State to "demonstrate[] by
a preponderance of the evidence that there is
a statutory bar or that the petition should
not be granted." If the State fails to satisfy
its burden in opposition to the expungement
petition, "[t]he petitioner is presumptively
entitled to expungement[.]"

[In re D.H., 204 N.J. 7, 18 (2010)
(alterations in original) (citations
omitted).]

The application was denied under N.J.S.A. 2C:52-14(f). That

statute provides:

A petition for expungement filed pursuant to
this chapter shall be denied when:

. . . .

f. The person seeking the relief of
expungement of a conviction for a disorderly
persons, petty disorderly persons, or criminal
offense has prior to or subsequent to said
conviction been granted the dismissal of
criminal charges following completion of a
supervisory treatment or other diversion
program.

[N.J.S.A. 2C:52-14(f).]

Petitioner contends the 1996 offenses involved the use of

slugs and that there never was an indictment, even for the forgery

charge. As such, petitioner contends the charges should both be

treated as disorderly persons offenses for purposes of

expungement. Because the statute only prohibits expungements

where petitioner participated in PTI for a criminal charge and the

4 A-0788-16T1
1996 offenses should be treated as disorderly persons charges,

petitioner contends he should be eligible for expungement of the

2005 conviction, relying on B.C., supra, 235 N.J. Super. at 161

(holding that "a disorderly persons [conviction] did not

constitute a 'criminal conviction' to the extent that it would

deprive someone of the right to an expungement" (citation

omitted)).

The Prosecutor contends that because petitioner participated

in PTI following the 1996 offenses, he is barred by N.J.S.A. 2C:52-

14(f) from expunging the 2005 conviction. Moreover, the Prosecutor

argues that forgery under N.J.S.A. 2C:21-1 is not a disorderly

persons offense and petitioner could only enter PTI if charged

with a criminal offense. See R. 3:28.

The record does not assist us in evaluating the nature of the

2005 conviction. The trial court decided the expungement petition

on the papers without petitioner having the ability to present

these arguments. Furthermore, the court did not make any findings

of fact or explain any legal conclusions. See R. 1:7-4(a)

(requiring findings of fact and conclusions of law in a non-jury

trial to be stated in "an opinion or memorandum decision, either

written or oral"). The court cited to three cases, but it did not

explain how or why they applied to this case. Thus, we are

constrained to reverse the order, which denied expungement, and

5 A-0788-16T1
to remand the case for further proceedings. On remand, the trial

court should permit additional briefing on these issues and, if

requested, permit oral argument.

Reversed and remanded. We do not retain jurisdiction.

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