G.P.B. is a fifty-two-year-old New Jersey resident and business owner, who, on April 19 and 20, 1999, committed several offenses in support of a scheme to offer illegal gifts to local officials in a particular municipality, in order to obtain a public contract for his business and a specific vote on a municipal resolution. G.P.B. pled guilty to four offenses: one count of third-degree conspiracy to offer gifts to a public servant and three counts of third-degree offering gifts to a public servant. He was sentenced to a county correctional facility for thirty days and ordered to perform 100 hours of community service and pay a $10,000 fine. G.P.B. petitioned for expungement on November 26, 2012, approximately ten years after his convictions.
The trial court granted G.P.B.’s petition, reasoning that his crimes were all part of a continuing conspiracy to influence a governing body and achieve a single aim, and that the conspiracy linked the charges together as one “crime” under N.J.S.A. 2C:52-2(a). In a published opinion, the Appellate Division reversed. The panel rejected the argument that the one-night spree concept of Fontana applied to the language of the current statute governing expungement of indictable offenses. Noting that G.P.B. had pled guilty to four offenses committed on two separate days, the panel concluded that he was not entitled to expungement.
The New Jersey Supreme Court held that the Legislature intended the expungement statute to provide relief to one-time offenders who have dissociated themselves with unlawful activity. As the law has changed over time, the Legislature has consistently strived to limit expungement to offenders who have committed no more than an isolated infraction in an otherwise law-abiding life. As originally enacted in 1931, and as amended in 1936, the statute permitted expungement when the offender had been convicted only once and “no subsequent conviction” had been entered against him or her. A later version of the statute with similar language was the subject of the Appellate Division’s analysis in In re Fontana, wherein the panel imported from sentencing law the concept of a “one-night spree” in order to expunge the conviction of a defendant who had pled guilty to ten thefts committed over a nine-day period. Three years after Fontana, in 1979, the Legislature combined various expungement provisions into Chapter 52 of the new Code of Criminal Justice. At the same time, it amended the language identifying the requirements for expungement when by enacting N.J.S.A. 2C:52-2. Instead of the former requirement that “no subsequent conviction has been entered against” the petitioner, N.J.S.A. 2A:164-28 (repealed 1979), the Legislature limited expungement to offenders who have not “been convicted of any prior or subsequent crime,” N.J.S.A. 2C:52-2(a).
Since the enactment of N.J.S.A. 2C:52-2(a), this Court has not applied the text to a case involving multiple offenses committed over a short period of time and adjudicated in a single conviction. The first published appellate opinion analyzing in detail the revised “prior or subsequent crime” language of N.J.S.A. 2C:52-2(a) was the 2008 Appellate Division case of In re Ross, wherein the panel determined that the words “prior” and “subsequent” modify the term “crime,” not the term “conviction.” Consequently, the panel rejected the Fontana holding, concluding that two crimes committed on separate occasions are precluded from expungement regardless of whether they carried a single date of conviction. Two years after the decision in Ross, the Legislature amended the expungement law to broaden opportunities for expungement in limited situations, such as when in the public interest or for certain third- and fourth-degree drug offenses. At that time, the Legislature neither altered the “prior or subsequent crime” language of N.J.S.A. 2C:52-2(a), nor abrogated the holding in Ross.
Consistent with separation of powers concerns, our Courts give great deference to the Legislature’s decision-making. The basis for this deference is philosophical and historical. It is not based in merit as our Legislature routinely makes errors and creates litigation due to their inconsistent and ambiguous statutory language their collective choice of statutory language.