On April 13, 2026, a three-judge appellate panel decided the Bergen County case of In the Matter of the Expungement of the Criminal/Juvenile Records of R.G.C. The principal issue under N.J.S.A. 2C:52-1 concerned when an expungement could be denied for failure to pay outstanding fines.
The case presents an interesting wealth dynamic. The defendant resides in Bergen County, which is one of New Jersey’s wealthiest. At the same time, she qualified for Public Defender representation as an indigent.
Judge Bishop-Thompson wrote for the Appellate Division in relevant part: In this appeal of first impression, we must determine the meaning of “willful noncompliance” in the “clean slate” statute, N.J.S.A. 2C:52-5.3(c), which permits an expungement of a New Jersey criminal record if ten years have passed “from the date of the petitioner’s] most recent conviction,” N.J.S.A. 2C:52-5.3(b), when restitution has not been fully made. The motion court denied petitioner’s second petition for expungement without prejudice after determining her failure to pay restitution upon release from prison constituted willful noncompliance. Petitioner contends her application should have been granted because more than ten years have passed since her release and her failure to satisfy the restitution obligation was not willful. Absent competent and credible evidence of petitioner’s inability to satisfy her restitution obligation, we conclude her failure to pay was a deliberate act made in conscious violation or disregard of the civil judgment and affirm.
The record demonstrates petitioner’s only payments toward restitution were garnishments collected during her period of incarceration. Petitioner presented no competent evidence to demonstrate her inability to pay during the seven years she remained in the United States following her release, nor during her time residing in Italy and Canada. Similarly, her claims of hardship, medical issues, and reliance on public assistance are unsupported by any competent and credible evidence in the record.
While petitioner no doubt pointed to her qualifying for public defender representation as proof that she could not pay full restitution, qualifying for the public defender is based on an applicant’s self-reports. The difference here is that the courts require more than self-reports to qualify as “competent, credible evidence.”
The three-judge panel continued in relevant: The determination of whether a petitioner is unable to pay full restitution is a fact-sensitive analysis, requiring the careful consideration of all competent and credible evidence presented by the parties. Unsupported assertions of hardship or indigency–without documentation or affidavits–are insufficient to rebut a finding of willfulness. See R. 1:6-6; N.J.S.A. 2C:52-8; 2C:52-8. Absent such credible and competent evidence demonstrating an inability to pay, petitioner’s assertion the failure to satisfy restitution was “nonwillful” fails. Accordingly, we hold petitioner’s failure to satisfy restitution following her release from prison was willful–a deliberate act in conscious violation or disregard of the judgment. See Callahan v. Tri-Borough Sand & Stone (App. Div. 2024).
The significance of a defendant’s statements supported by an affidavit is that she can be prosecuted for false swearing for a knowingly false statement. Without the affidavit, she has little motivation to tell the truth and much to gain in avoiding restitution.
The Court concluded with the following in relevant part: We conclude the motion court properly exercised its discretion in ruling petitioner failed to establish by a preponderance of the evidence her inability to satisfy the judgment was not willful. The court’s finding of willful noncompliance is supported by both the record and the governing law. See Balducci v. Cige (2020); Gnall v. Gnall (2015).
