Bill Text: NJ A355 | 2012-2013 | Regular Session | Introduced
Bill Title: Permits automatic expungement of criminal records under certain circumstances.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Introduced - Dead) 2012-05-14 - Reported and Referred to Assembly Appropriations Committee [A355 Detail]
Download: New_Jersey-2012-A355-Introduced.html
STATE OF NEW JERSEY
215th LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2012 SESSION
Sponsored by:
Assemblyman REED GUSCIORA
District 15 (Hunterdon and Mercer)
Assemblyman JERRY GREEN
District 22 (Middlesex, Somerset and Union)
Assemblyman ALBERT COUTINHO
District 29 (Essex)
SYNOPSIS
Permits automatic expungement of criminal records under certain circumstances.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning automatic expungement of criminal records and revising various sections of the statutory law.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. N.J.S.2C:52-2 is amended to read as follows:
2C:52-2. Indictable Offenses.
a. In all cases, except as herein provided, wherein a person has been convicted of a crime under the laws of this State and who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, and has not been adjudged a disorderly person or petty disorderly person on more than two occasions may, after the expiration of a period of [10] seven years from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later, present a duly verified petition as provided in [section] N.J.S.2C:52-7 to the Superior Court in the county in which the conviction was entered praying that such conviction and all records and information pertaining thereto be expunged.
Notwithstanding the provisions of the preceding paragraph, a petition may be filed and presented, and the court may grant an expungement pursuant to this section, although less than [10] seven years has expired in accordance with the requirements of the preceding paragraph where the court finds:
(1) less than [10] seven years has expired from the satisfaction of a fine, but the [10] seven-year time requirement is otherwise satisfied, and the court finds that the person substantially complied with any payment plan ordered pursuant to N.J.S.2C:46-1 et seq., or could not do so due to compelling circumstances affecting his ability to satisfy the fine; or
(2) at least five years has expired from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later; the person has not been convicted of a crime, disorderly persons offense, or petty disorderly persons offense since the time of the conviction; and the court finds in its discretion that expungement is in the public interest, giving due consideration to the nature of the offense, and the applicant's character and conduct since conviction.
In determining whether compelling circumstances exist for the purposes of paragraph (1) of this subsection, a court may consider the amount of the fine or fines imposed, the person's age at the time of the offense, the person's financial condition and other relevant circumstances regarding the person's ability to pay.
Although subsequent convictions for no more than two disorderly or petty disorderly offenses shall not be an absolute bar to relief, the nature of those conviction or convictions and the circumstances surrounding them shall be considered by the court and may be a basis for denial of relief if they or either of them constitute a continuation of the type of unlawful activity embodied in the criminal conviction for which expungement is sought.
b. Records of conviction pursuant to statutes repealed by this Code for the crimes of murder, manslaughter, treason, anarchy, kidnapping, rape, forcible sodomy, arson, perjury, false swearing, robbery, embracery, or a conspiracy or any attempt to commit any of the foregoing, or aiding, assisting or concealing persons accused of the foregoing crimes, shall not be expunged.
Records of conviction for the following crimes specified in the New Jersey Code of Criminal Justice shall not be subject to expungement: [Section] N.J.S.2C:11-1 et seq. (Criminal Homicide), except death by auto as specified in [section] N.J.S.2C:11-5; [section] N.J.S.2C:13-1 (Kidnapping); [section 2C:13-6] section 1 of P.L.1993, c.291, (C.2C:13-6) (Luring or Enticing); section 1 of P.L.2005, c.77 (C.2C:13-8) (Human Trafficking); [section] N.J.S.2C:14-2 (Sexual Assault or Aggravated Sexual Assault); [section] N.J.S.2C:14-3a (Aggravated Criminal Sexual Contact); if the victim is a minor, [section] N.J.S.2C:14-3b (Criminal Sexual Contact); if the victim is a minor and the offender is not the parent of the victim, [section] N.J.S.2C:13-2 (Criminal Restraint) or [section] N.J.S.2C:13-3 (False Imprisonment); [section] N.J.S.2C:15-1 (Robbery); [section] N.J.S.2C:17-1 (Arson and Related Offenses); [section] N.J.S.2C:24-4a. (Endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child); [section] N.J.S.2C:24-4b(4) (Endangering the welfare of a child); [section] N.J.S.2C:24-4b. (3) (Causing or permitting a child to engage in a prohibited sexual act); [section] N.J.S.2C:24-4b.(5)(a) (Selling or manufacturing child pornography); [section] N.J.S.2C:28-1 (Perjury); [section] N.J.S.2C:28-2 (False Swearing); [section] N.J.S.2C:34-1b.(4) (Knowingly promoting the prostitution of the actor's child); section 2 of P.L.2002, c.26 (C.2C:38-2) (Terrorism); subsection a. of section 3 of P.L.2002, c.26 (C.2C:38-3) (Producing or Possessing Chemical Weapons, Biological Agents or Nuclear or Radiological Devices); and conspiracies or attempts to commit such crimes.
Records of conviction for any crime committed by a person holding any public office, position or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof and any conspiracy or attempt to commit such a crime shall not be subject to expungement if the crime involved or touched such office, position or employment.
c. In the case of conviction for the sale or distribution of a controlled dangerous substance or possession thereof with intent to sell, expungement shall be denied except where the crimes involve:
(1) Marijuana, where the total quantity sold, distributed or possessed with intent to sell was 25 grams or less;
(2) Hashish, where the total quantity sold, distributed or possessed with intent to sell was five grams or less; or
(3) Any controlled dangerous substance provided that the conviction is of the third or fourth degree, where the court finds that expungement is consistent with the public interest, giving due consideration to the nature of the offense and the petitioner's character and conduct since conviction.
d. In the case of a State licensed physician or podiatrist convicted of an offense involving drugs or alcohol or pursuant to section 14 or 15 of P.L.1989, c.300 (C.2C:21-20 or 2C:21-4.1), the court shall notify the State Board of Medical Examiners upon receipt of a petition for expungement of the conviction and records and information pertaining thereto or, in the case of automatic expungement, once the records have been expunged.
e. In any case wherein a person has been convicted of a crime under the laws of this State, and the conviction qualifies for expungement pursuant to subsections a. and c. and appears in a criminal history record maintained by the State Police, the conviction and all records and information pertaining thereto shall be automatically expunged.
(cf: P.L.2009, c.188, s.1)
2. N.J.S.2C:52-3 is amended to read as follows:
2C:52-3. Disorderly Persons Offenses and Petty Disorderly Persons Offenses. [Any] a. Except as provided in subsection b., any person convicted of a disorderly persons offense or petty disorderly persons offense under the laws of this State who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, or of another three disorderly persons or petty disorderly persons offenses, may, after the expiration of a period of [5] three years from the date of his conviction, payment of fine, or satisfactory completion of probation or release from incarceration, whichever is later, present a duly verified petition as provided in [section] N.J.S.2C:52-7 hereof to the Superior Court in the county in which the conviction was entered praying that such conviction and all records and information pertaining thereto be expunged.
b. Notwithstanding subsection a., any person convicted of a disorderly persons offense or petty disorderly persons offense for a violation of N.J.S.2C:17-3, N.J.S.2C:20-11, or Chapter 35 or 36 in Title 2C of the New Jersey Statutes that appears in a criminal history record maintained by the State Police, who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, or of another three disorderly persons or petty disorderly persons offenses, shall, after the expiration of a period of three years from the date of his conviction, payment of fine, or satisfactory completion of probation or release from incarceration, whichever is later, have the conviction and all records and information pertaining thereto automatically expunged by the Superior Court in the county in which the conviction was entered.
(cf: P.L.1981, c. 290, s. 43)
3. Section 1 of P.L.1980, c.163 (C.2C:52-4.1) is amended to read as follows:
1. a. Any person adjudged a juvenile delinquent may have such adjudication expunged as follows:
(1) Pursuant to N.J.S.2C:52-2, if the act committed by the juvenile would have constituted a crime if committed by an adult;
(2) Pursuant to N.J.S.2C:52-3, if the act committed by the juvenile would have constituted a disorderly or petty disorderly persons offense if committed by an adult; [or]
(3) Pursuant to N.J.S.2C:52-4, if the act committed by the juvenile would have constituted an ordinance violation if committed by an adult ; or
(4) If the act committed by the juvenile would, if committed by an adult, be subject to automatic expungement pursuant to subsection e. of N.J.S.2C:52-2, subsection b. of 2C:52-3, or paragraph (2) of subsection a. of N.J.S.2C:52-5, the adjudication shall be automatically expunged.
For purposes of expungement, any act which resulted in a juvenile being adjudged a delinquent shall be classified as if that act had been committed by an adult.
b. Additionally, any person who has been adjudged a juvenile delinquent may have his entire record of delinquency adjudications expunged if:
(1) [Five] Four years have elapsed since the final discharge of the person from legal custody or supervision or [5] four years have elapsed after the entry of any other court order not involving custody or supervision, except that periods of post-incarceration supervision pursuant to section 25 of P.L.1982, c.77 (C.2A:4A-44), shall not be considered in calculating the [five] four-year period for purposes of this paragraph;
(2) He has not been convicted of a crime, or a disorderly or petty disorderly persons offense, or adjudged a delinquent, or in need of supervision, during the [5] four years prior to the filing of the petition or, in the case of automatic expungement, the four years after he has satisfied his detention, and no proceeding or complaint is pending seeking such a conviction or adjudication, except that periods of post-incarceration supervision pursuant to section 25 of P.L.1982, c.77 (C.2A:4A-44), shall not be considered in calculating the [five] four-year period for purposes of this paragraph;
(3) He was never adjudged a juvenile delinquent on the basis of an act which if committed by an adult would constitute a crime not subject to expungement under N.J.S.2C:52-2;
(4) He has never had an adult conviction expunged; and
(5) He has never had adult criminal charges dismissed following completion of a supervisory treatment or other diversion program.
c. Any person who has been charged with an act of delinquency and against whom proceedings were dismissed may have the filing of those charges expunged pursuant to the provisions of N.J.S.2C:52-6.
(cf: P.L.2009, c.188, s.2)
4. N.J.S.2C:52-5 is amended to read as follows:
Expungement of Records of Young Drug Offenders. a. Notwithstanding the provisions of [sections] N.J.S.2C:52-2 and N.J.S.2C:52-3, [after a period of not less than one year following conviction, termination of probation or parole or discharge from custody, whichever is later,] any person convicted of an offense under chapters 35 or 36 of this title for the possession or use of a controlled dangerous substance [, convicted of violating P.L. 1955, c.277, s. 3 (C. 2A:170-77.5), or convicted of violating P.L. 1962, c.113, s. 1 (C. 2A:170-77.8),] and who at the time of the offense was 21 years of age or younger [,] may have the conviction expunged as follows:
(1) Except as provided in paragraph (2) of this subsection, after a period of not less than one year following conviction, termination of probation or parole or discharge from custody, whichever is later, the person may apply to the Superior Court in the county wherein the matter was disposed of for the expungement of such person's conviction and all records pertaining thereto.
(2) If the person was convicted of a disorderly persons offense or a petty disorderly persons offense that record appears in a criminal history record maintained by the State Police, after a period of one year following conviction, termination of probation or parole or discharge from custody, whichever is later, the conviction and all records pertaining thereto shall be automatically expunged by the Superior Court in the county wherein the violation occurred.
b. The relief of expungement under this section shall be granted only if said person has not, prior to the time of hearing or eligibility for automatic expungement, violated any of the conditions of his probation or parole, albeit subsequent to discharge from probation or parole, has not been convicted of any previous or subsequent criminal act or any subsequent or previous violation of chapters 35 or 36 of this title [or of P.L.1955, c.277, s.3 (C.2A:170-77.5) or of P.L. 1962, c.113, s.1 (C.2A:170-77.8)], or who has not had a prior or subsequent criminal matter dismissed because of acceptance into a supervisory treatment or other diversion program.
c. This section shall not apply to any person who has been convicted of the sale or distribution of a controlled dangerous substance or possession with the intent to sell any controlled dangerous substance except:
(1) Marihuana, where the total sold, distributed or possessed with intent to sell was 25 grams or less, or
(2) Hashish, where the total amount sold, distributed or possessed with intent to sell was 5 grams or less.
(cf: P.L.1987, c.106, s.16)
5. N.J.S.2C:52-14 is amended to read as follows:
2C:52-14. [A petition for expungement filed pursuant to this chapter] Expungement shall be denied when:
a. Any statutory prerequisite, including any provision of this chapter, is not fulfilled or there is any other statutory basis for denying relief.
b. The need for the availability of the records outweighs the desirability of having a person freed from any disabilities as otherwise provided in this chapter. An application may be denied under this subsection only following objection of a party given notice pursuant to 2C:52-10 and the burden of asserting such grounds shall be on the objector, except that in regard to expungement sought for third or fourth degree drug offenses pursuant to paragraph (3) of subsection c. of N.J.S.2C:52-2, the court shall consider whether this factor applies regardless of whether any party objects on this basis.
c. In connection with a petition under section 2C:52-6, the acquittal, discharge or dismissal of charges resulted from a plea bargaining agreement involving the conviction of other charges. This bar, however, shall not apply once the conviction is itself expunged.
d. The arrest or conviction sought to be expunged is, at the time of hearing, the subject matter of civil litigation between the petitioner or his legal representative and the State, any governmental entity thereof or any State agency and the representatives or employees of any such body.
e. A person has had a previous criminal conviction expunged regardless of the lapse of time between the prior expungement, or sealing under prior law, and the present petition. This provision shall not apply:
(1) When the person is seeking the expungement of a municipal ordinance violation or,
(2) When the person is seeking the expungement of records pursuant to section 2C:52-6.
f. The person seeking the relief of expungement of a conviction for a disorderly persons, petty disorderly persons, or criminal offense has prior to or subsequent to said conviction been granted the dismissal of criminal charges following completion of a supervisory treatment or other diversion program.
(cf: P.L.2009, c.188, s.3)
6. N.J.S.2C:52-15 is amended to read as follows:
2C:52-15. Records to be Removed; Control. If an [order of] expungement of records of arrest or conviction under this chapter is granted [by the court], all the records [specified in said order] subject to expungement shall be removed from the files of the agencies [which have been noticed of the pendency of petitioner's motion and] which are, by the provisions of this chapter, entitled to notice, and shall be placed in the control of a person who has been designated by the head of each such agency which, at the time of the [hearing] expungement, possesses said records. That designated person shall, except as otherwise provided in this chapter, insure that such records or the information contained therein are not released for any reason and are not utilized or referred to for any purpose. In response to requests for information or records of the person who was arrested or convicted, all noticed officers, departments and agencies shall reply, with respect to the arrest, conviction or related proceedings which are the subject of the order, that there is no record information.
(cf: N.J.S.2C:52-15)
7. N.J.S.2C:52-16 is amended to read as follows:
2C:52-16. Expunged Record Including Names of Persons Other than [Petitioner] Person Seeking Expungement. Any record or file which is maintained by a judicial or law enforcement agency, or agency in the criminal justice system, which is the subject of an order of expungement or an automatic expungement which includes the name or names of persons other than that of the [petitioner] person seeking expungement need not be isolated from the general files of the agency retaining same if the other persons named in said record or file have not been granted an order of expungement or an automatic expungement of said record, provided that a copy of the record shall be given to the person designated in 2C:52-15 and the original shall remain in the agency's general files with the petitioner's name and other personal identifiers obliterated and deleted.
(cf: N.J.S.2C:52-16)
8. N.J.S.2C:52-19 is amended to read as follows:
2C:52-19. Order of Superior Court Permitting Inspection of Records or Release of Information; Limitations. Inspection of the files and records, or release of the information contained therein, which are the subject of an [order of] expungement, or sealing under prior law, may be permitted by the Superior Court upon motion for good cause shown and compelling need based on specific facts. The motion or any order granted pursuant thereto shall specify the person or persons to whom the records and information are to be shown and the purpose for which they are to be utilized. Leave to inspect shall be granted by the court only in those instances where the subject matter of the records of arrest or conviction is the object of litigation or judicial proceedings. Such records may not be inspected or utilized in any subsequent civil or criminal proceeding for the purposes of impeachment or otherwise but may be used for purposes of sentencing on a subsequent offense after guilt has been established.
(cf: N.J.S.2C:52-19)
9. N.J.S.2C:52-24 is amended to read as follows:
2C:52-24. County Prosecutor's Obligation to Ascertain Propriety of [Petition] Expungement. Notwithstanding the notice requirements provided herein, it shall be the obligation of the county prosecutor of the county wherein any petition for expungement is filed or any automatic expungement is pending to verify the accuracy of the [allegations contained in the petition for] information pertinent to the granting of expungement and to bring to the court's attention any facts which may be a bar to, or which may make inappropriate the granting of, such relief. If no disabling, adverse or relevant information is ascertained [other than that as included in the petitioner's affidavit, such facts shall be communicated by] the prosecutor [to the hearing judge] shall provide documentation in that regard.
(cf: N.J.S.2C:52-24)
10. N.J.S.2C:52-26 is amended to read as follows:
2C:52-26. Vacating Orders of Sealing; Time; Basis. [If] a. Except in the case of an automatic expungement, if, within 5 years of the entry of an expungement order, any party to whom notice is required to be given pursuant to [section] N.J.S.2C:52-10 notifies the court which issued the order that at the time of the petition or hearing there were criminal, disorderly persons or petty disorderly persons charges pending against the person to whom the court granted such order, which charges were not revealed to the court at the time of hearing of the original motion or that there was some other statutory disqualification, said court shall vacate the expungement order in question and reconsider the original motion in conjunction with the previously undisclosed information.
b. In the case of an automatic expungement, if, within five years of the grant of an expungement, the court receives any information demonstrating that there were criminal, disorderly persons or petty disorderly persons charges pending against the person granted the expungement and that those charges were not available through a criminal history record maintained by the State Police at the time automatic expungement was granted or that there was some other statutory disqualification, the grant of expungement shall be reconsidered in conjunction with the previously unavailable information.
(cf: N.J.S.2C:52-26)
11. N.J.S.2C:52-27 is amended to read as follows:
2C:52-27. Effect of Expungement. Unless otherwise provided by law, if an [order of] expungement is granted, the arrest, conviction and any proceedings related thereto shall be deemed not to have occurred, and the [petitioner] person granted the expungement may answer any questions relating to their occurrence accordingly, except as follows:
a. The fact of an expungement, sealing or similar relief shall be disclosed as provided in [section 2C:52-8b] subsection b. of N.J.S.2C:52-8.
b. The fact of an expungement of prior charges which were dismissed because of the person's acceptance into and successful completion of a supervisory treatment or other diversion program shall be disclosed by said person to any judge who is determining the propriety of accepting said person into a supervisory treatment or other diversion program for subsequent criminal charges; and
c. Information divulged on expunged records shall be revealed by a [petitioner] person granted expungement seeking employment within the judicial branch or with a law enforcement or corrections agency and such information shall continue to provide a disability as otherwise provided by law.
(cf: P.L.1981, c.290, s.45)
12. Section 5 of P.L.1997, c.353 (C.2C:52-27.1) is amended to read as follows:
5. a. If an [order of] expungement of records of conviction under the provisions of chapter 52 of Title 2C of the New Jersey Statutes is granted [by the court] to a person convicted of health care claims fraud [in which the court had ordered] wherein the offender's professional license or certificate is required to be forfeited and the person be forever barred from the practice of the profession, occupation, trade, vocation or business pursuant to subsection a. of section 4 of P.L.1997, c.353 (C.2C:51-5), the person may petition the court for an order to rescind the court's order of debarment if the person can demonstrate that the person is sufficiently rehabilitated.
b. If an order to rescind the court's order of debarment is granted, the person granted the order may apply to be licensed or certified to practice the profession, occupation, trade, vocation or business from which the offender was barred.
(cf: P.L.2003, c.89, s.77)
13. (New section) No fee shall be charged for an automatic expungement of records pursuant to the provisions of chapter 52 of the New Jersey Statutes.
14. (New section) The Supreme Court of New Jersey may adopt Rules of Court and the Administrative Director of the Courts may issue directives and guidelines to implement the purposes of P.L. , c. (C. ) (pending before the Legislature as this bill).
15. This act shall take effect on the 60th day after enactment.
STATEMENT
This bill would permit the automatic expungement of records of certain criminal offenses under certain conditions.
Specifically, a person may be granted an automatic expungement of an indictable offense if the offense would otherwise qualify for expungement, and the record of the offense appears in criminal history record maintained by the State Police. The record of a conviction for an indictable criminal offense may be expunged when the person has not been convicted of any prior or subsequent crime and has not been adjudged a disorderly person or petty disorderly person on more than two occasions for a period of seven years from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later.
In the case of a disorderly persons or a petty disorderly persons offense, the record of the conviction may be automatically expunged by the Superior Court in the county in which the conviction was entered if the conviction that appears in a criminal history record maintained by the State Police and was for a violation of N.J.S.2C:17-3 (criminal mischief), N.J.S.2C:20-11, (shoplifting), or chapters 35 or 36 in Title 2C of the New Jersey Statutes (drug offenses). The record may be automatically expunged only if the person has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, or of another three disorderly persons or petty disorderly persons offenses, shall, after the expiration of a period of three years from the date of his conviction, payment of fine, or satisfactory completion of probation or release from incarceration, whichever is later.
This bill would also permit a person who was adjudged a juvenile delinquent to receive an automatic expungement if the act committed by the juvenile would, if committed by an adult, have been subject to automatic expungement.
In the case of a person convicted of a disorderly persons or petty disorderly offense involving controlled dangerous substances that appears in a search of criminal history record maintained by the State Police, if the person was 21 years of age or younger at the time of the offense, the person may be granted automatic expungement if, after a period of one year following conviction, termination of probation or parole or discharge from custody, whichever is later, the person has not violated any of the conditions of his probation or parole, has not been convicted of any previous or subsequent criminal act, and has not had a prior or subsequent criminal matter dismissed because of acceptance into a supervisory treatment or other diversion program.
The requirement that, to qualify for automatic expungement, the conviction appear in a criminal history record maintained by the State Police reflects the fact that the records of some convictions only appear in local or county records and are not available through a statewide computerized search. If a conviction does not qualify for automatic expungement, and the statutory criteria for expungement are otherwise met, a person seeking expungement may petition the court for expungement in accordance with current statutory law.
It is the responsibility of the county prosecutor of the county wherein any petition for expungement is filed or any automatic expungement is pending to verify the accuracy of the information pertinent to the granting of expungement and to bring to the court's attention any facts which may be a bar to, or which may make inappropriate the granting of, such relief. If no disabling, adverse or relevant information is ascertained, the prosecutor shall provide documentation in that regard.
If, within five years of the grant of an expungement, the court receives any information demonstrating that there were criminal, disorderly persons, or petty disorderly persons charges pending against the person granted the expungement, and that those charges were not available through a criminal history record maintained by the State Police at the time automatic expungement was granted or that there was some other statutory disqualification, the grant of expungement shall be reconsidered in conjunction with the previously unavailable information.
Automatic expungement would not be subject to the filing fees required for a petition for expungement filed with the Superior Court. The filing fee would remain in effect for any conviction not subject to automatic expungement.
This bill would also reduce the time that must elapse for any expungement. In the case of an indictable offense, this bill would reduce the statutory period from 10 to seven years. In the case of a disorderly persons or petty disorderly persons offense, this bill would reduce the statutory period from five to three years. In the case of a person adjudged a juvenile delinquent, this bill would reduce the statutory period from five to four years.
This bill would not change the current provisions concerning the grounds for which expungement must be denied or the crimes which constitute an absolute bar to expungement.
