NOT FOR PUBLICATION WITHOUT THE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-3910-18T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
L.P.,
Defendant-Appellant.
______________________________
Argued December 19, 2019 – Decided January 8, 2020
Before Judges Alvarez and Suter.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Accusation No. 04-09-
2050.
Emeka Nkwuo argued the cause for appellant (Lomurro
Munson, Comer, Brown & Schottland LLC, attorneys;
Christina Vassiliou Harvey, of counsel; Emeka Nkwuo,
of counsel and on the brief).
Ian David Brater, Assistant Prosecutor, argued the
cause for respondent (Christopher J. Gramiccioni,
Monmouth County Prosecutor, attorney; Ian David
Brater, of counsel and on the brief).
PER CURIAM
L.P. appeals the denial of her expungement application. We affirm the
denial because her conviction for child endangerment under N.J.S.A. 2C:24-4(a)
is not subject to expungement. Also, the trial court did not abuse its discretion
by denying the application under N.J.S.A. 2C:52-2(c)(3) as contrary to the
public interest.
Petitioner was arrested in 2004 after she sold drugs, including ecstasy, to
an undercover police officer on multiple occasions. A search of her apartment
yielded drugs, a considerable quantity of cash and two handguns, one of which
was hidden under the mattress of the bed used by her fourteen-year-old daughter.
She was charged with multiple offenses under a twenty-eight count accusation.
In 2004, petitioner pleaded guilty to third-degree distribution of a controlled
dangerous substance (CDS), N.J.S.A. 2C:35-5(b)(9)(b);1 two counts of third-
degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) and third-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4(a). She was sentenced to
three-years probation on each count, to be served concurrently, and to pay
1
The judgment of conviction provides that the conviction was for possessi on
of CDS in violation of N.J.S.A. 2C:35-10(a)(1), however, at the expungement
hearing, both counsel indicated this was an error and that the conviction was for
CDS distribution.
A-3910-18T2
2
assessments and penalties. She successfully completed all court-ordered
requirements and her case was closed.
Petitioner was arrested in 2012 for theft by unlawful taking, N.J.S.A.
2C:20-3(a). She pleaded guilty in 2013 to violation of a local ordinance for
disorderly conduct. She was ordered to pay restitution to the victim, fines and
costs.
Petitioner's request to expunge the 2004 and 2013 convictions was denied
on May 9, 2019. The trial court rejected petitioner's argument that the
legislature intended non-sexual conduct offenses under N.J.S.A. 2C:24-4(a) to
be subject to expungement. Any conviction under subsection "a" was not
expungeable under N.J.S.A. 2C:52-2(b) based on the plain language of the
statute. The trial court found expungement of petitioner's convictions was not
in the public interest. She was not a drug-addict but had "distributed narcotics
for profit." She was selling ecstasy, which is a dangerous drug. Petitioner had
drugs, cash and handguns. She endangered her child by storing the gun under
her daughter's mattress.
On appeal, petitioner raises the following arguments:
POINT ONE
APPELLANT'S EXPUNG[E]MENT IS NOT
PROHIBITED UNDER N.J.S.A. 2C: 52-2 (b).
A-3910-18T2
3
POINT TWO
[L.P]'S EXPUNG[E]MENT SHOULD NOT BE
BARRED BECAUSE N.J.S.A.2C:52-2(b) IS
AMBIG[U]OUS AND THE RULE OF LENITY
REQUIRES THAT AMBIG[U]OUS STATUTES
MUST BE RULED IN FAVOR OF THE
DEFENDANT.
POINT THREE
[L.P.]'S EXPUNGEMENT SHOULD BE GRANTED
BECAUSE IT IS CONSISTENT WITH THE PUBLIC
INTEREST.
"The Legislature's intent is the paramount goal when interpreting a statute
and, generally, the best indicator of that intent is the statutory language."
DiProspero v. Penn, 183 N.J. 477, 492 (2005) (citing Frugis v. Bracigliano, 177
N.J. 250, 280 (2003)). We are not to "rewrite a plainly-written enactment of the
Legislature [or] presume that the Legislature intended something other than that
expressed by way of the plain language." O'Connell v. State, 171 N.J. 484, 488
(2002). We cannot add qualifications the legislature did not include.
DiProspero, 183 N.J. at 492 (citing Craster v. Bd. of Comm'rs, 9 N.J. 225, 230
(1952)). We review this issue de novo because it raises an issue of statutory
interpretation. Beim v. Hulfish, 216 N.J. 484, 497 (2014).
A-3910-18T2
4
The expungement statute 2 prohibits the expungement of certain
convictions.
Records of conviction for the following crimes
specified in the New Jersey Code of Criminal Justice
shall not be subject to expungement: . . . ; subsection a.
of N.J.S.2C:24-4 (Endangering the welfare of a child
by engaging in sexual conduct which would impair or
debauch the morals of the child, or causing the child
other harm); paragraph (4) of subsection b. of N.J.S.
2C:24-4 (Photographing or filming a child in a
prohibited sexual act or for portrayal in a sexually
suggestive manner); paragraph (3) of subsection b. of
N.J.S.2C:24-4 (Causing or permitting a child to engage
in a prohibited sexual act or the simulation of an act, or
to be portrayed in a sexually suggestive manner);
subparagraph (a) of paragraph (5) of subsection b. of
N.J.S.2C:24-4 (Distributing, possessing with intent to
distribute or using a file-sharing program to store items
depicting the sexual exploitation or abuse of a child);
subparagraph (b) of paragraph (5) of subsection b. of
N.J.S.2C:24-4 (Possessing or viewing items depicting
the sexual exploitation or abuse of a child); . . . .
[N.J.S.A. 2C:52-2(b) (emphasis added).]
Petitioner's conviction under N.J.S.A. 2C:24-4(a) cannot be expunged
under this statute. First, the expungement statute enumerates subsection "a" as
one of the offenses that cannot be expunged. Next, the language in the
parenthetical that follows the statutory citation includes conduct "causing the
2
The expungement statute's recent amendment did not change the language
relevant to this appeal. See L. 2019, c. 269.
A-3910-18T2
5
child other harm" without making any reference in that phrase to sexual conduct.
A court is not to "presume that the Legislature intended something other than
what it expressed in plain words." In re Plan for Abolition of the Council on
Affordable Hous., 214 N.J. 444, 468 (2013). Where there is no ambiguity in the
language of a statute, as is the case here, "a court's task is complete." Ibid.
Petitioner was convicted under N.J.S.A. 2C:24-4(a) and a conviction under that
statute cannot be expunged.
Petitioner contends that reference in the parenthetical to "causing the child
other harm" was limited to harm caused by sexual conduct. She argues the
Legislature could have included abuse and neglect related harms if it intended
to include them. In N.T., we recently explained:
[t]he phrases "who engages in sexual conduct which
would impair or debauch the morals of a child" and
"who causes the child harm that would make the child
an abused or neglected child" are separated by a comma
and the word "or" indicates they are disjunctive and
refer to a list of two distinct harms.
[ State v. N.T., __ N.J. Super. __. (App. Div. 2019) (slip
op. at 8).] 3
3
We are not bound by the opinion of another panel of the Appellate Division.
See Brundage v. Estate of Carambio, 394 N.J. Super. 292, 298 n.4 (App. Div.
2007), rev'd on other grounds, 195 N.J. 575, 593 (2008).
A-3910-18T2
6
Thus, we rejected petitioner's construction of the parenthetical that is was
limited to harms arising from sexual conduct only.
Petitioner cites to the expungement statute prior to its 2016 amendment to
support her argument that non-sexual child endangerment offenses are
expungeable. In 2004, when petitioner pleaded guilty, and until 2016, the
expungement statute provided:
Records of conviction for the following crimes
specified in the New Jersey Code of Criminal Justice
shall not be subject to expungement . . . section 2C:24-
4a. (Endangering the welfare of a child by engaging in
sexual conduct which would impair or debauch the
morals of the child)[.]
[N.J.S.A. 2C:52-2(b) (1994).]
It did not include reference to "other harms." The language "causing the child
other harm" was added in 2016. The committee statement accompanying the
bill provided the purpose of the amendment was to "update, using the accepted
current citation format, the statutory citations for the list of criminal convictions
that are not subject to expungement; such updating does not add any additional
crimes to this list[.]" Statement of the Senate Judiciary Comm. to A. 206, 471,
1663, 2879, 3060, and 3108 (May 7, 2015). Because the original parenthetical
only referenced sexual conduct, petitioner argues the Legislature did not intend
A-3910-18T2
7
to expand the list of prohibited crimes when it amended the statute in 2016 to
add "other harm" that was not sexual in nature.
We rejected a similar argument in In re Expungement of W.S., 367 N.J.
Super. 307, 312-13 (App. Div. 2004). W.S. concerned N.J.S.A. 2C:52-2(b)'s list
of non-expungeable offenses, specifically a conviction under "section 2C:14-2
(Aggravated Sexual Assault). . . ." Id. at 310. The statute prohibited
expungement under N.J.S.A. 2C:14-2 without making a distinction between
different degrees of the offense. It was the parenthetical that followed the
statutory citation that gave rise to the question about the scope of the statute's
prohibition. The issue in W.S. was "whether the parenthetical reference to
'aggravated sexual assault' following 'section 2C:14–2' in N.J.S.A. 2C:52–2(b)
limit[ed] the violations of N.J.S.A. 2C:14–2 that [were] not subject to
expungement to aggravated sexual assaults or [was it] simply an incomplete
description of the offenses proscribed by N.J.S.A. 2C:14–2." Id. at 311. In
W.S., we held the parenthetical that followed the statutory citation was "simply
an incomplete and thus inaccurate description of this offense that does no t limit
the scope of the prohibition against expungement." Id. at 312.
Here, the expungement statute unequivocally states that offenses under
subsection "a" of N.J.S.A. 2C:24-4 cannot be expunged. In 2004, when
A-3910-18T2
8
petitioner pleaded guilty, paragraph "a" of the child endangerment statute
provided:
Any person having a legal duty for the care of a child
or who has assumed responsibility for the care of a
child who engages in sexual conduct which would
impair or debauch the morals of the child, or who
causes the child harm that would make the child an
abused or neglected child as defined in R.S.9:6-1,
R.S.9:6-3 and P.L.1974, c. 119, s.1 (C.9:6-8.21) is
guilty of a crime of the second degree. Any other
person who engages in conduct or who causes harm as
described in this subsection to a child under the age of
[sixteen] is guilty of a crime of the third degree.
[N.J.S.A. 2C:24-4(a) (2001) (emphasis added).]
At least since 1979, the statute has included reference in subsection "a" to "harm
that would make the child an abused or neglected child." L. 1979, c. 178, §46.
In 2013, the statute was amended. N.J.S.A. 2C:24-4(a)(1) now addresses
"sexual conduct which would impair or debauch the morals of the child."
N.J.S.A. 2C: 24-4(a)(2) addresses "harm that would make the child an abused
or neglected child as defined in [specific sections of Title Nine]." Had the
legislature intended to limit the expungement statute to sexual offenses only, it
could have said so in the 2016 amendments because by then N.J.S.A. 2C:24-4(a)
had been amended to create subsections (a)(1) and (a)(2). We observed in N.T.
that "[t]he Legislature did not do so. We infer, through well-established law,
A-3910-18T2
9
that the omission was intentional." N.T., __ N.J. Super. __ (slip op.at 9) (citing
Ryan v. Renny, 203 N.J. 37, 58, (2010)).
We conclude the expungement statute's parenthetical prior to 2016 was
not intended to limit the scope of the prohibition against expungement to sexual
conduct only. To read the expungement statute otherwise would be to limit the
legislature's inclusion of subsection "a" to just a portion of that statute, despite
the Legislature's longstanding inclusion in N.J.S.A. 2C:24-4(a) of sexual and
non-sexual offenses.
Petitioner argues the phrase "other harm" is not defined and the term abuse
and neglect is not mentioned in the expungement parenthetical. She contends
the doctrine of lenity should apply because, at best, the statute is ambiguous.
The doctrine of lenity "holds that when interpreting a criminal statute,
ambiguities that cannot be resolved by either the statute's text or extrinsic aids
must be resolved in favor of the defendant." State v. Gelman, 195 N.J. 475, 482
(2008). It "is founded on the long-standing and fundamental principle that a
person facing a criminal charge is entitled to 'fair warning . . . of what the law
intends to do if a certain line is passed.'" Id. at 482 (quoting United States v.
Bass, 404 U.S. 336, 347-48 (1971) (citation omitted)).
A-3910-18T2
10
Lenity does not apply in this case. The statute is not ambiguous as we
have determined. Its plain language precludes expungement of a conviction
under N.J.S.A. 2C:24-4(a). Also, "the expungement statute is a remedial, not a
punitive statute." State v. T.P.M., 189 N.J. Super. 360, 367-68 (App. Div. 1983).
It "relates to neither the form of sentence nor the extent of punishment." Id. at
368. As such, lenity, which applies in interpreting a criminal statute, does not
apply in construing the expungement statute. See State v. Meinken, 10 N.J. 348,
352 (1952) (providing that remedial laws should be liberally construed and penal
laws, strictly construed).
Under N.J.S.A. 2C:52-2(c), expungement "shall be denied" for a
"conviction for the sale or distribution of controlled dangerous substance . . . ."
One exception to this prohibition is for third or fourth-degree CDS offenses
where "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)(3). A court is to "consider and
balance" these factors. In re Kollman, 210 N.J. 557, 572 (2012) (citing N.J.S.A.
2C:52-2(c)(3)).
Petitioner contends expungement is consistent with the public interest and
should have been granted. She submitted letters to the court attesting to her
A-3910-18T2
11
good character. But for the disorderly conduct conviction in 2013, she did not
commit an offense in over fourteen years.
We discern no abuse of discretion by the trial court in denying petitioner's
expungement request. Id. at 210 N.J. at 577 (providing trial court's balancing
of competing factors is reviewed for abuse of discretion). Although petitioner
submitted character letters, the trial court considered that petitioner distributed
"highly dangerous" narcotics for profit to an undercover police officer on
multiple occasions and kept the drugs in her home. At the time of her arrest ,
police located two handguns, one of which was found under the mattress of a
bed used by her fourteen-year-old daughter. After her 2004 conviction, she
pleaded guilty in 2013 to an offense that was downgraded to disorderly conduct.
The court properly took all of this into consideration in determining t hat
expungement was not in the public interest.
Affirmed.
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