The way the statute is currently drafted, if a person were to be sentenced into Drug Court today and then go to a municipal court to resolve a pending under-50 grams of marijuana case, they are technically barred from the expungement under N.J.S.A. 2C:35-14(m). While the court certainly could understand the intent of the Legislature being that if a person is on special Drug Court probation and then is involved in criminal activity, charged and convicted, that it would bar the extraordinary expungement relief that is otherwise offered. But it seems inconsistent with the philosophy of the expungement statute to bar the relief to an individual with a pending matter when sentenced into Drug Court.
Of course, the court is cognizant of the fact that if the pending charge would otherwise disqualify an expungement, such as a robbery, the person would not be entitled regardless of the timing of the conviction. This court believes that the focus of the Legislature was to stop defendants from committing new crimes after placement on special probation, not to punish them for past pending indiscretions. This is strong and undeniable logic that will likely prevent the prosecution from appealing, or will help the defense prevail if they do appeal the law division decision to the appellate division.
In fact, rather, the plain meaning of “during” is “throughout the course or duration of a specific time.” That specific time is after a defendant is sentenced to special probation. It does not apply to pending charges incurred previously that, for whatever reason, have yet to be disposed. The focus of the Legislature was to stop defendants from committing new crimes after placement on special probation, not to punish them for past pending indiscretions. This should translate to allow a new defendant sentenced to special probation, who falls under subsection one, the ability to address previous pending matters during Drug Court without losing their eligibility for expungement under N.J.S.A. 2C:35-14(m).