Bill Text: NJ A2829 | 2012-2013 | Regular Session | Introduced
Bill Title: Permits automatic expungement for certain persons completing a sentence to drug court under the special probation statute.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Introduced - Dead) 2012-05-14 - Reported and Referred to Assembly Appropriations Committee [A2829 Detail]
Download: New_Jersey-2012-A2829-Introduced.html
Sponsored by:
Assemblyman JERRY GREEN
District 22 (Middlesex, Somerset and Union)
Assemblywoman BONNIE WATSON COLEMAN
District 15 (Hunterdon and Mercer)
SYNOPSIS
Permits automatic expungement for certain persons completing a sentence to drug court under the special probation statute.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning expungement and amending and supplementing chapter 52 of Title 2C of the New Jersey Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. N.J.S.2C:35-14 is amended to read as follows:
2C:35-14. Rehabilitation Program for Drug and Alcohol Dependent Persons Subject to a Presumption of Incarceration or a Mandatory Minimum Period of Parole Ineligibility; Criteria for Imposing Special Probation; Ineligible Offenders; Prosecutorial Objections; Commitment to Residential Treatment Facilities or Participation in a Nonresidential Treatment Program; Presumption of Revocation; Brief Incarceration in Lieu of Permanent Revocation.
a. Any person who is ineligible for probation due to a conviction for a crime which is subject to a presumption of incarceration or a mandatory minimum period of parole ineligibility may be sentenced to a term of special probation in accordance with this section, and may not apply for drug and alcohol treatment pursuant to N.J.S.2C:45-1. Nothing in this section shall be construed to prohibit a person who is eligible for probation in accordance with N.J.S.2C:45-1 due to a conviction for an offense which is not subject to a presumption of incarceration or a mandatory minimum period of parole ineligibility from applying for drug or alcohol treatment as a condition of probation pursuant to N.J.S.2C:45-1. Notwithstanding the presumption of incarceration pursuant to the provisions of subsection d. of N.J.S.2C:44-1, and except as provided in subsection c. of this section, whenever a drug or alcohol dependent person who is subject to sentencing under this section is convicted of or adjudicated delinquent for an offense, other than one described in subsection b. of this section, the court, upon notice to the prosecutor, may, on motion of the person, or on the court's own motion, place the person on special probation, which shall be for a term of five years, provided that the court finds on the record that:
(1) the person has undergone a professional diagnostic assessment to determine whether and to what extent the person is drug or alcohol dependent and would benefit from treatment; and
(2) the person is a drug or alcohol dependent person within the meaning of N.J.S.2C:35-2 and was drug or alcohol dependent at the time of the commission of the present offense; and
(3) the present offense was committed while the person was under the influence of a controlled dangerous substance, controlled substance analog or alcohol or was committed to acquire property or monies in order to support the person's drug or alcohol dependency; and
(4) substance abuse treatment and monitoring will serve to benefit the person by addressing his drug or alcohol dependency and will thereby reduce the likelihood that the person will thereafter commit another offense; and
(5) the person did not possess a firearm at the time of the present offense and did not possess a firearm at the time of any pending criminal charge; and
(6) the person has not been previously convicted on two or more separate occasions of crimes of the first or second degree, other than those listed in paragraph (7); or the person has not been previously convicted on two or more separate occasions, where one of the offenses is a crime of the third degree, other than crimes defined in N.J.S.2C:35-10, and one of the offenses is a crime of the first or second degree; and
(7) the person has not been previously convicted or adjudicated delinquent for, and does not have a pending charge of murder, aggravated manslaughter, manslaughter, robbery, kidnapping, aggravated assault, aggravated sexual assault or sexual assault, or a similar crime under the laws of any other state or the United States; and
(8) a suitable treatment facility licensed and approved by the Division of Addiction Services in the Department of Human Services is able and has agreed to provide appropriate treatment services in accordance with the requirements of this section; and
(9) no danger to the community will result from the person being placed on special probation pursuant to this section.
In determining whether to sentence the person pursuant to this section, the court shall consider all relevant circumstances, and shall take judicial notice of any evidence, testimony or information adduced at the trial, plea hearing or other court proceedings, and shall also consider the presentence report and the results of the professional diagnostic assessment to determine whether and to what extent the person is drug or alcohol dependent and would benefit from treatment.
As a condition of special probation, the court shall order the person to enter a residential treatment program at a facility licensed and approved by the Division of Addiction Services in the Department of Human Services or a program of nonresidential treatment by a licensed and approved treatment provider, to comply with program rules and the requirements of the course of treatment, to cooperate fully with the treatment provider, and to comply with such other reasonable terms and conditions as may be required by the court or by law, pursuant to N.J.S.2C:45-1, and which shall include periodic urine testing for drug or alcohol usage throughout the period of special probation. In determining whether to order the person to participate in a nonresidential rather than a residential treatment program, the court shall follow the procedure set forth in subsection j. of this section. Subject to the requirements of subsection d. of this section, the conditions of special probation may include different methods and levels of community-based or residential supervision.
b. A person shall not be eligible for special probation pursuant to this section if the person is convicted of or adjudicated delinquent for:
(1) a crime of the first degree;
(2) a crime of the first or second degree enumerated in subsection d. of section 2 of P.L.1997, c.117 (C.2C:43-7.2);
(3) a crime, other than that defined in section 1 of P.L.1987, c.101 (C.2C:35-7), for which a mandatory minimum period of incarceration is prescribed under chapter 35 of this Title or any other law; or
(4) an offense that involved the distribution or the conspiracy or attempt to distribute a controlled dangerous substance or controlled substance analog to a juvenile near or on school property.
c. A person who is subject to sentencing under this section in accordance with subsection a. shall not be eligible for a sentence of special probation pursuant to this section if:
(1) the person has been:
(a) convicted of or adjudicated delinquent for an offense under section 1 of P.L.1987, c.101 (C.2C:35-7), subsection b. of section 1 of P.L.1997, c.185 (C.2C:35-4.1), or any crime for which there exists a presumption of imprisonment pursuant to subsection d. of N.J.S.2C:44-1 or any other statute;
(b) previously convicted of an offense under subsection a. of N.J.S.2C:35-5 or a similar offense under any other law of this State, any other state or the United States; or
(c) previously convicted on two or more separate occasions of crimes of the third degree, other than crimes defined in N.J.S.2C:35-10; and
(2) the prosecutor objects to the person being placed on special probation. The court shall not place a person on special probation over the prosecutor's objection except upon a finding by the court of a gross and patent abuse of prosecutorial discretion. If the court makes a finding of a gross and patent abuse of prosecutorial discretion and imposes a sentence of special probation notwithstanding the objection of the prosecutor, the sentence of special probation imposed pursuant to this section shall not become final for 10 days in order to permit the appeal of such sentence by the prosecution.
d. Except as otherwise provided in subsection j. of this section, a person convicted of or adjudicated delinquent for a crime of the second degree or of a violation of section 1 of P.L.1987, c.101 (C.2C:35-7), or who previously has been convicted of or adjudicated delinquent for an offense under subsection a. of N.J.S.2C:35-5 or a similar offense under any other law of this State, any other state or the United States, who is placed on special probation under this section shall be committed to the custody of a residential treatment facility licensed and approved by the Division of Addiction Services in the Department of Human Services. Subject to the authority of the court to temporarily suspend imposition of all or any portion of the term of commitment to a residential treatment facility pursuant to subsection j. of this section, the person shall be committed to the residential treatment facility immediately, unless the facility cannot accommodate the person, in which case the person shall be incarcerated to await commitment to the residential treatment facility. The term of such commitment shall be for a minimum of six months, or until the court, upon recommendation of the treatment provider, determines that the person has successfully completed the residential treatment program, whichever is later, except that no person shall remain in the custody of a residential treatment facility pursuant to this section for a period in excess of five years. Upon successful completion of the required residential treatment program, the person shall complete the period of special probation, as authorized by subsection a. of this section, with credit for time served for any imprisonment served as a condition of probation and credit for each day during which the person satisfactorily complied with the terms and conditions of special probation while committed pursuant to this section to a residential treatment facility. Except as otherwise provided in subsection l. of this section, the person shall not be eligible for early discharge of special probation pursuant to N.J.S.2C:45-2, or any other provision of the law. The court, in determining the number of credits for time spent in residential treatment, shall consider the recommendations of the treatment provider. A person placed into a residential treatment facility pursuant to this section shall be deemed to be subject to official detention for the purposes of N.J.S.2C:29-5 (escape).
e. The probation department or other appropriate agency designated by the court to monitor or supervise the person's special probation shall report periodically to the court as to the person's progress in treatment and compliance with court-imposed terms and conditions. The treatment provider shall promptly report to the probation department or other appropriate agency all significant failures by the person to comply with any court imposed term or condition of special probation or any requirements of the course of treatment, including but not limited to a positive drug or alcohol test or the unexcused failure to attend any session or activity, and shall immediately report any act that would constitute an escape. The probation department or other appropriate agency shall immediately notify the court and the prosecutor in the event that the person refuses to submit to a periodic drug or alcohol test or for any reason terminates his participation in the course of treatment, or commits any act that would constitute an escape.
f. (1) Upon a first violation of any term or condition of the special probation authorized by this section or of any requirements of the course of treatment, the court in its discretion may permanently revoke the person's special probation.
(2) Upon a second or subsequent violation of any term or condition of the special probation authorized by this section or of any requirements of the course of treatment, the court shall, subject only to the provisions of subsection g. of this section, permanently revoke the person's special probation unless the court finds on the record that there is a substantial likelihood that the person will successfully complete the treatment program if permitted to continue on special probation, and the court is clearly convinced, considering the nature and seriousness of the violations, that no danger to the community will result from permitting the person to continue on special probation pursuant to this section. The court's determination to permit the person to continue on special probation following a second or subsequent violation pursuant to this paragraph may be appealed by the prosecution.
(3) In making its determination whether to revoke special probation, and whether to overcome the presumption of revocation established in paragraph (2) of this subsection, the court shall consider the nature and seriousness of the present infraction and any past infractions in relation to the person's overall progress in the course of treatment, and shall also consider the recommendations of the treatment provider. The court shall give added weight to the treatment provider's recommendation that the person's special probation be permanently revoked, or to the treatment provider's opinion that the person is not amenable to treatment or is not likely to complete the treatment program successfully.
(4) If the court permanently revokes the person's special probation pursuant to this subsection, the court shall impose any sentence that might have been imposed, or that would have been required to be imposed, originally for the offense for which the person was convicted or adjudicated delinquent. The court shall conduct a de novo review of any aggravating and mitigating factors present at the time of both original sentencing and resentencing. If the court determines or is required pursuant to any other provision of this chapter or any other law to impose a term of imprisonment, the person shall receive credit for any time served in custody pursuant to N.J.S.2C:45-1 or while awaiting placement in a treatment facility pursuant to this section, and for each day during which the person satisfactorily complied with the terms and conditions of special probation while committed pursuant to this section to a residential treatment facility. The court, in determining the number of credits for time spent in a residential treatment facility, shall consider the recommendations of the treatment provider.
(5) Following a violation, if the court permits the person to continue on special probation pursuant to this section, the court shall order the person to comply with such additional terms and conditions, including but not limited to more frequent drug or alcohol testing, as are necessary to deter and promptly detect any further violation.
(6) Notwithstanding any other provision of this subsection, if the person at any time refuses to undergo urine testing for drug or alcohol usage as provided in subsection a. of this section, the court shall, subject only to the provisions of subsection g. of this section, permanently revoke the person's special probation. Notwithstanding any other provision of this section, if the person at any time while committed to the custody of a residential treatment facility pursuant to this section commits an act that would constitute an escape, the court shall forthwith permanently revoke the person's special probation.
(7) An action for a violation under this section may be brought by a probation officer or prosecutor or on the court's own motion. Failure to complete successfully the required treatment program shall constitute a violation of the person's special probation. A person who fails to comply with the terms of his special probation pursuant to this section and is thereafter sentenced to imprisonment in accordance with this subsection shall thereafter be ineligible for entry into the Intensive Supervision Program, provided however that this provision shall not affect the person's eligibility for entry into the Intensive Supervision Program for a subsequent conviction.
g. When a person on special probation is subject to a presumption of revocation on a second or subsequent violation pursuant to paragraph (2) of subsection f. of this section, or when the person refuses to undergo drug or alcohol testing pursuant to paragraph (6) of subsection f. of this section, the court may, in lieu of permanently revoking the person's special probation, impose a term of incarceration for a period of not less than 30 days nor more than six months, after which the person's term of special probation pursuant to this section may be reinstated. In determining whether to order a period of incarceration in lieu of permanent revocation pursuant to this subsection, the court shall consider the recommendations of the treatment provider with respect to the likelihood that such confinement would serve to motivate the person to make satisfactory progress in treatment once special probation is reinstated. This disposition may occur only once with respect to any person unless the court is clearly convinced that there are compelling and extraordinary reasons to justify reimposing this disposition with respect to the person. Any such determination by the court to reimpose this disposition may be appealed by the prosecution. Nothing in this subsection shall be construed to limit the authority of the court at any time during the period of special probation to order a person on special probation who is not subject to a presumption of revocation pursuant to paragraph (2) of subsection f. of this section to be incarcerated over the course of a weekend, or for any other reasonable period of time, when the court in its discretion determines that such incarceration would help to motivate the person to make satisfactory progress in treatment.
h. The court, as a condition of its order, and after considering the person's financial resources, shall require the person to pay that portion of the costs associated with his participation in any rehabilitation program, nonresidential treatment program or period of residential treatment imposed pursuant to this section which, in the opinion of the court, is consistent with the person's ability to pay, taking into account the court's authority to order payment or reimbursement to be made over time and in installments.
i. The court shall impose, as a condition of the special probation, any fine, penalty, fee or restitution applicable to the offense for which the person was convicted or adjudicated delinquent.
j. Where the court finds that a person has satisfied all of the eligibility criteria for special probation and would otherwise be required to be committed to the custody of a residential treatment facility pursuant to the provisions of subsection d. of this section, the court may temporarily suspend imposition of all or any portion of the term of commitment to a residential treatment facility and may instead order the person to enter a nonresidential treatment program, provided that the court finds on the record that:
(1) the person conducting the diagnostic assessment required pursuant to paragraph (1) of subsection a. of this section has recommended in writing that the proposed course of nonresidential treatment services is clinically appropriate and adequate to address the person's treatment needs; and
(2) no danger to the community would result from the person participating in the proposed course of nonresidential treatment services; and
(3) a suitable treatment provider is able and has agreed to provide clinically appropriate nonresidential treatment services.
If the prosecutor objects to the court's decision to suspend the commitment of the person to a residential treatment facility pursuant to this subsection, the sentence of special probation imposed pursuant to this section shall not become final for ten days in order to permit the appeal by the prosecution of the court's decision.
After a period of six months of nonresidential treatment, if the court, considering all available information including but not limited to the recommendation of the treatment provider, finds that the person has made satisfactory progress in treatment and that there is a substantial likelihood that the person will successfully complete the nonresidential treatment program and period of special probation, the court, on notice to the prosecutor, may permanently suspend the commitment of the person to the custody of a residential treatment program, in which event the special monitoring provisions set forth in subsection k. of this section shall no longer apply.
Nothing in this subsection shall be construed to limit the authority of the court at any time during the term of special probation to order the person to be committed to a residential or nonresidential treatment facility if the court determines that such treatment is clinically appropriate and necessary to address the person's present treatment needs.
k. (1) When the court temporarily suspends the commitment of the person to a residential treatment facility pursuant to subsection j. of this section, the court shall, in addition to ordering participation in a prescribed course of nonresidential treatment and any other appropriate terms or conditions authorized or required by law, order the person to undergo urine testing for drug or alcohol use not less than once per week unless otherwise ordered by the court. The court-ordered testing shall be conducted by the probation department or the treatment provider. The results of all tests shall be reported promptly to the court and to the prosecutor. In addition, the court shall impose appropriate curfews or other restrictions on the person's movements, and may order the person to wear electronic monitoring devices to enforce such curfews or other restrictions as a condition of special probation.
(2) The probation department or other appropriate agency shall immediately notify the court and the prosecutor in the event that the person fails or refuses to submit to a drug or alcohol test, knowingly defrauds the administration of a drug test, terminates his participation in the course of treatment, or commits any act that would constitute absconding from parole. If the person at any time while entered in a nonresidential treatment program pursuant to subsection j. of this section knowingly defrauds the administration of a drug test, goes into hiding or leaves the State with a purpose of avoiding supervision, the court shall permanently revoke the person's special probation.
l. If the court finds that the person has made exemplary progress in the course of treatment, the court may, upon recommendation of the person's supervising probation officer or on the court's own motion, and upon notice to the prosecutor, grant early discharge from a term of special probation provided that the person: (1) has satisfactorily completed the treatment program ordered by the court; (2) has served at least two years of special probation; (3) did not commit a substantial violation of any term or condition of special probation, including but not limited to a positive urine test, within the preceding 12 months; and (4) is not likely to relapse or commit an offense if probation supervision and related services are discontinued.
m. Upon completion of a sentence to a term of special probation, the conviction and all records and information pertaining thereto shall be automatically expunged, provided that:
(1) The person has not been convicted of any prior 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 prior occasions;
(2) The conviction is for a crime not included in the list of crimes that may not be expunged as provided in subsections b. or c. of N.J.S.2C:52-2; and
(3) The person has not had a previous criminal conviction expunged regardless of the lapse of time between the prior expungement, or sealing under prior law, and the completion of the present sentence to a term of special probation.
(cf: P.L.2008, c.15, s.1)
2. 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 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 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 years has expired in accordance with the requirements of the preceding paragraph where the court finds:
(1) less than 10 years has expired from the satisfaction of a fine, but the 10-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 2C:14-3a] subsection a. of N.J.S.2C:14-3 (Aggravated Criminal Sexual Contact); if the victim is a minor, [section 2C:14-3b] subsection b. of N.J.S.2C:14-3 (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 2C:24-4a.] subsection a. of N.J.S.2C:24-4 (Endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child); [section 2C:24-4b(4)] paragraph (4) of subsection b. of N.J.S.2C:24-4 (Endangering the welfare of a child); [section 2C:24-4b. (3)] paragraph (3) of subsection b. of N.J.S.2C:24-4 (Causing or permitting a child to engage in a prohibited sexual act); [section 2C:24-4b.(5)(a)] subparagraph (a) of paragraph (5) of subsection b. of N.J.S.2C:24-4 (Selling or manufacturing child pornography); [section] N.J.S.2C:28-1 (Perjury); [section] N.J.S.2C:28-2 (False Swearing); [section 2C:34-1b.(4)] paragraph (4) of subsection b. of N.J.S.2C:34-1 (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.
e. In the case of a person who has completed a sentence to special probation under N.J.S.2C:35-14 and who qualifies for automatic expungement pursuant to subsection m. of N.J.S.2C:35-14, the conviction and all records and information pertaining thereto shall be automatically expunged.
(cf: P.L.2009, c.188, s.1)
3. (New section) a. Records subject to automatic expungement as provided in subsection m. of N.J.S.2C:35-14 and subsection e. of N.J.S.2C:52-2 shall be treated in the same manner as records subject to an order of expungement as provided in N.J.S.2C:52-1 et seq.
b. A person eligible for automatic expungement shall not be required to file a petition for automatic expungement.
c. Notwithstanding subsection b., any office or agency required to be served with a petition for expungement pursuant to N.J.S.2C:52-10 shall be notified by the court not less than 10 days prior to the grant of an automatic expungement that an automatic expungement is pending. All such offices and agencies shall be served with all information relevant to the grant of the automatic expungement.
d. An office or agency notified under subsection c. shall notify the court of any statutory disqualification to the grant of automatic expungement. A statutory disqualification shall be the only basis for an office or agency to object to automatic expungement.
e. No fee shall be charged for an automatic expungement of records.
f. It shall be the obligation of the county prosecutor of the county wherein any automatic expungement is pending to verify the accuracy of the information pertinent to the granting of the automatic 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.
g. If, within five years of the grant of an automatic expungement, the court which granted the expungement is notified that at the time the expungement was granted there were criminal, disorderly persons or petty disorderly persons charges pending against the person granted expungement, which charges were not revealed to the court at the time the expungement was granted or that there was some other statutory disqualification, said court shall vacate the order granting automatic expungement and reconsider the matter in conjunction with the previously undisclosed information.
4. (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).
5. This act shall take effect on the 60th day after enactment.
STATEMENT
This bill would grant automatic expungement of records of a criminal conviction to certain persons who have completed a sentence to a term of special probation, commonly referred to as the "drug court" program. To qualify for automatic expungement, the person cannot have been convicted of any prior crime or have been adjudged a disorderly person or petty disorderly person on more than two prior occasions; the conviction cannot be for any of the crimes that are ineligible for expungement under subsections b. and c. of N.J.S.2C:52-2; and the person cannot have had a previous criminal conviction expunged regardless of the lapse of time between the prior expungement and the completion of a sentence to special probation.
The bill would set forth certain procedural requirements for a grant of automatic expungement. No petition would be required and no fee could be charged for a grant of automatic expungement. Any office or agency that would be required to be served with a petition for expungement pursuant to N.J.S.2C:52-10 would be notified by the court not less than 10 days prior to the grant of an automatic expungement that the automatic expungement is pending and would be served with all information relevant to the grant of the automatic expungement. An office or agency entitled to notice would be required to notify the court of any statutory disqualification to the grant of automatic expungement. A statutory disqualification would be the only basis for the office or agency to object to automatic expungement. The county prosecutor would be required to investigate all facts relevant to a pending automatic expungement and report any facts that would bar expungement or make a grant of expungement inappropriate. If, within five years of the grant of an automatic expungement, the court that granted the expungement is notified that at the time expungement was granted there were criminal, disorderly persons or petty disorderly persons charges pending against the person, which charges were not revealed to the court at the time the expungement was granted or that there was some other statutory disqualification, said court would be required to vacate the order granting automatic expungement and reconsider the matter in conjunction with the previously undisclosed information. Records subject to a grant of automatic expungement would be treated the same as records subject to an order of expungement as provided in N.J.S.2C:52-1 et seq.
Crimes that are not subject to expungement include: criminal homicide, kidnapping, luring or enticing, human trafficking, sexual assault or aggravated sexual assault, aggravated criminal sexual contact if the victim is a minor, criminal sexual contact if the victim is a minor and the offender is not the parent of the victim, criminal restraint, false imprisonment, robbery, arson and related offenses, endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child, endangering the welfare of a child, causing or permitting a child to engage in a prohibited sexual act, selling or manufacturing child pornography, perjury, false swearing, knowingly promoting the prostitution of the actor's child, terrorism, producing or possessing chemical weapons, biological agents or nuclear or radiological devices, certain convictions for the sale or distribution of a controlled dangerous substance or possession thereof with intent to sell, and conspiracies or attempts to commit such crimes. Additionally, 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 may not be expunged if the crime involved or touched such office, position or employment.
This bill would not alter the procedures for filing a petition for expungement under N.J.S.2C:52-1 et seq., and nothing in this bill would restrict the ability of offenders who did not complete a term of special probation to petition for expungement as provided under current law.
