New Jersey Clarifies Its Expungement Standard

New Jersey Supreme Court Reverses Appellate Expungement Opinion; Clarifies Boundaries of a Judge’s Discretion to Grant or Deny Expungement Application

Everyone deserves a second chance. Unfortunately, in a day and age when background checks and paper trails are a standard part of the pre-employment process, it’s increasingly important for New Jerseyans with criminal records to know their options under New Jersey’s expungement statute. On Tuesday, the New Jersey State Supreme Court clarified exactly what those rights entail. A little background is required at this point. The New Jersey State Legislature recently amended New Jersey’s expungement statute, N.J.S.A. 2C:52-2, allowing for a five (5) year discretionay expungement instead of a ten (10) year expungement. The sponsors’ goal was to give New Jersey courts greater discretion when someone convicted of an enumerated indictable offense at least five (5) years prior applied for an expungement. N.J.S.A. 2C:52-2(a)(2) provides that the court needs to to decide whether expungement is in the “public interest, the “nature of the offense” and the applicant party’s “character and conduct since conviction.” Some notable examples of indictable offenses eligible for expungement covered under 2C:52-2 include:

Criminal Homicide (NJSA 2C:11-1), except death by auto Luring or Enticing (NJSA 2C:13-6); Human Trafficking (NJSA 2C:13-8); Aggravated Sexual Assault (NJSA 2C:14-2); Aggravated Criminal Sexual Contact (NJSA 2C:14-3a); Criminal Sexual Contact (NJSA 2C:14-3b); Criminal Restraint (NJSA 2C:13-2); False Imprisonment (NJSA 2C:13-3); Robbery (NJSA 2C:15-1); Arson and Related Offenses (NJSA 2C:17-1); Endangering the welfare of a child (NJSA 2C:24-4b(4)); Causing or permitting a child to engage in a prohibited sexual act (NJSA 2C:24-4b. (3)); Selling or manufacturing child pornography (NJSA 2C:24-4b.(5)(a)); Perjury (NJSA 2C:28-1); Knowingly promoting the prostitution of the actor’s child (NJSA 2C:34-1b.(4)); Terrorism (NJSA 2C:38-2)

Unfortunately, until now and perhaps not unsurprisingly, the  discretion provided to New Jersey courts under the amended expungement statute created unpredictability and divergent decisions. It was hard for attorneys and their clients to predict an expungement application’s chance of success. The Court’s new opinion in In Re Ronald Kollman will therefore come as very welcome news to anyone seeking an expungement in New Jersey… The facts of In Re Ronald Kollman were relatively straightforward. In March 2010, Mr. Ronald Kollman filed an application with the court to expunge a prior conviction on one count of “distribution of a controlled dangerous substance” (or “CDS”). Of crucial importance is the fact that Mr. Kollman had led an exemplary life since his conviction. He hadn’t been in trouble with the law since then and discussed how he had graduated from college while working full-time. He also submitted 21 individual letters along with his application attesting to his moral character, accomplishments, good deeds and personal growth. In short, Mr. Kollman made a compelling case that he deserved to move on without the encumbrance of a publicly-available criminal record.

The Legislature had already determine that all 3rd or 4th degree CDS offenses were eligible for expungement, and Mr. Kollman’s conviction was on a 3rd degree charge.

The State nevertheless opposed his application. Its argument centered on the principle that the community would need continuing access to his criminal record due to the serious nature of his offense – distributing drugs. The Trial-level Court agreed. Although the State bore the burden of proving that the requested expungement was not in the public interest by a preponderance of the evidence, the judge nevertheless felt the state met its burden due to the serious nature of Mr. Kollman’s offense and, consequently, the public’s need to be aware of it. The Appellate Division subsequently affirmed the Trial Court’s decision. The Supreme Court, however, agreed to entertain Kollman’s appeal and ultimately reversed the Appellate Court’s decision. Chief Justice Rabner’s majority opinion held that a New Jersey defendant seeking an expungement also has the burden of demonstrating why expungement would be in the public interest. If the state objected on statutory grounds, the burden would shift to the State much like before the 2010 amendment to the statute. The Chief Justice specifically noted that the statute was designed to eliminate “the collateral consequences imposed upon otherwise law-abiding citizens who have had a minor brush with the criminal justice system.” Hence, a trial court should weigh all introduced evidence of rehabilitation and be careful to view said evidence in all lights. Simply put, the Supreme Court reversed the Appellate Court’s denial of Mr. Kollman’s expungement application because the justices felt he had met this burden. Chief Justice Rabner was unswayed  by the state’s concern of access to criminal records since expunged records are still awlays available to the courts, prosecutors, probation authorities and other officials under certain defined circumstances. He also took issue with the fact that the Trial and Appellate Courts had viewed certain evidence in a negative light when the opposite inference was reasonable; for example, Chief Justice Rabner felt that the facts that Mr. Kollman was employed at the time of his offense, and his subsequent desire to volunteer for children, should not necessarily have been view negatively. The Chief Justice set forth a number of facts in his lengthy opinion but the guiding principle set forth is that a New Jersey court should not reject expungement applications on generic grounds, i.e., because an offense is “too serious.” The case was ultimately remanded for consideration of Mr. Kollman’s character and progress in light of the balancing considerations set forth by Chief Justice Rabner. Expungement is clearly still very serious business. The Court’s latest decision is helpful to those who need an expungement to get their lives fully on track. That said, you can see that the initial burden still rests on the party seeking an expungement to provide substantial evidence of subsequent good behavior and rehabilitation. Don’t go through this difficult and challenging process by yourself. If you or a loved one needs a criminal record expungement, then the attorneys at DeMichele & DeMichele, P.C. can help. Contact the New Jersey Expungement Lawyers at DeMichele and DeMichele online today or by calling (856) 546-1350 for a free and confidential consultation. We offer fixed and flat fees for our services. We except Visa and MasterCard and payment plans are available.