The New Jersey case that addresses expungement eligibility for multiple offenses is IN THE MATTER OF THE EXPUNGEMENT PETITION OF J.S. and IN THE MATTER OF THE EXPUNGEMENT OF THE CRIMINAL RECORDS OF G.P.B. The New Jersey Supreme Court decided theses consolidated cases on August 10, 2015. Writing for a majority of the Court, Justice Patterson held that the plain language of N.J.S.A. 2C:52-2(a) precludes expungement of convictions when the petitioner has been convicted of multiple crimes, even when those crimes occurred within a short span of time.
J.S. is a thirty-four-year-old former New Jersey resident, who, in 2000, while a sophomore at Kean University, was arrested after twice selling marijuana to an undercover police officer during a five-day period. The first sale occurred on June 16, 2001, and involved 25.2 grams of marijuana. The second sale occurred on June 21, 2001, and involved 100 grams of marijuana. J.S was arrested and charged with nine offenses. On May 29, 2001, he pled guilty to a fourth-degree distribution charge arising from the June 16 sale, and a third-degree distribution charge arising from the June 21 sale. J.S. was sentenced to a three-year term of noncustodial probation. Five years after completing his sentence, he filed the expungement petition that is the subject of this appeal.
Note that prosecutors often require pleas to multiple offenses as a means to prevent a defendant from every expunging his or her record. Very few defense attorneys are aware of this practice. Moreover, being unaware is not a basis for an ineffective assistance of counsel claim. That is because courts consider civil matters like expungements to be “collateral consequences” of a conviction that are beyond the realm of what criminal defense attorneys are required to discuss with their clients.
The trial court granted J.S.’s petition, reasoning that his two offenses were a “single spree” that, under the 1976 case of In re Fontana, constituted a solitary “crime.” In an unpublished opinion, the Appellate Division reversed. Finding that the court’s reliance on Fontana was misplaced because that case applied an earlier version of the expungement statute, the panel adopted the reasoning of In re Ross, which was decided in 2008. In Ross, the Appellate Division applied the current statute and rejected the “one-night spree” concept. Under N.J.S.A. 2C:52-2(a), the panel concluded that J.S.’s two offenses were “prior or subsequent” to one another, thus barring expungement.