Expungements and Out-of-State Convictions

by | Dec 20, 2023 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

On November 8, 2023, a three-judge appellate panel decided the Monmouth County case of IN the Matter of the Expungement Application of K.M.G. The principal issue under N.J.S.A. 2C:52-1 concerned whether an out-of-state conviction was a bar to a “clean slate” expungement.

Judge Sumners wrote for the Appellate Division in relevant part: As in Ochoa, the “clean slate” language does not specify that the conviction in question includes out-of-state convictions, but it also does not specify “that such offenses must have been committed within this State.” Like in Ochoa, there also is a strong, if not conclusive, textual argument that the disputed language nevertheless excludes out-of-state convictions. When ‘the Legislature has carefully employed a term in one place and excluded it in another, it should not be implied where excluded.'” Furthermore, like Ochoa, that argument must fail given the Legislature’s clear directive that the expungement statutes be construed to give relief to the reformed “but not to create a system whereby persistent violators of the law have a regular means of expunging their police and criminal records.”

Our Supreme Court has concluded that “the Legislature is presumed to be ‘thoroughly conversant with its own legislation and the judicial construction placed thereon.'” When our Legislature has not specified whether out-of-state convictions are considered regarding the availability of expungement, the courts have construed the expungement statutes to declare that they do. We should not assume the Legislature intended we would rule any differently here.

Finally, nothing in the history of the “clean slate” statute’s enactment supports the trial court’s interpretation. Statements from the Governor’s Office and legislators in support of the enactment are consistent with the purpose of the expungement statutes. The Governor’s Office’s press release refers to the “clean slate” expungement process as for those “who have not committed an offense in ten years.” Senate President Stephen M. Sweeney, who sponsored the “clean slate” bill, S. 4154 (2018), said that “clean slate” was for “former offenders.” Assemblywoman Verlina Reynolds-Jackson stated the process would “bring us a step closer to social equity and social justice for offenders who have not committed a law violation in years.” We are thus convinced that, given the clear intent of the “clean slate” statute, expunging petitioner’s New Jersey criminal record would result in an absurd result because her Virginia conviction occurred within ten years of her petition for expungement. The case is reversed and remanded to the trial court to enter an order vacating its expungement order.

A fair counterpoint to the Court’s analysis is that if the Legislature were familiar with its legislation and judicial interpretations thereof, it would have been more careful with the language it used. It could have avoided the instant litigation by making it clear that out-of-state convictions are also bars to clean slate expungements.