Bill Text: NJ A5038 | 2016-2017 | Regular Session | Amended
Bill Title: Revises procedures for expunging criminal and other records and information, including shortening of certain waiting periods for expungement eligibility and increasing number of convictions which may be expunged.
Spectrum: Partisan Bill (Democrat 7-0)
Status: (Introduced - Dead) 2017-12-07 - Substituted by S3307 (1R) [A5038 Detail]
Download: New_Jersey-2016-A5038-Amended.html
Sponsored by:
Assemblywoman ELIZABETH MAHER MUOIO
District 15 (Hunterdon and Mercer)
Assemblyman RAJ MUKHERJI
District 33 (Hudson)
Assemblyman JERRY GREEN
District 22 (Middlesex, Somerset and Union)
SYNOPSIS
Revises procedures for expunging criminal and other records and information, including shortening of certain waiting periods for expungement eligibility and increasing number of convictions which may be expunged.
CURRENT VERSION OF TEXT
As reported by the Assembly Budget Committee on June 26, 2017, with amendments.
An Act revising procedures for expunging criminal and other records and information, amending various parts of the statutory law 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:52-2 is amended to read as follows:
2C:52-2. Indictable Offenses.
a. In all cases, except as herein provided, [wherein] a person may present an expungement application to the Superior Court pursuant to this section if:
the person has been convicted of 1[a] one1 crime under the laws of this State [and who has not] 1, and does not otherwise have any prior or subsequent conviction for another crime, whether within this State or any other jurisdiction;1 or
1[a combination] the person has been convicted1 of one crime and less than four disorderly persons or petty disorderly persons offenses under the laws of this State 1[which were not closely related in circumstances or in time, provided that the person has], and does1 not otherwise 1[been convicted of] have1 any prior or subsequent 1conviction for another1 crime, or any prior or subsequent 1conviction for another1 disorderly persons or petty disorderly persons offense 1[or offenses]1 such that the total number of convictions for disorderly persons and petty disorderly persons offenses would exceed three, whether any such crime or offense conviction was within this State or any other jurisdiction [, and has not been convicted of a disorderly persons or petty disorderly persons offense on more than two occasions]; or
1the person has been convicted of multiple crimes or a combination of one or more crimes and one or more disorderly persons or petty disorderly persons offenses under the laws of this State, all of which are listed in a single judgment of conviction, and does not otherwise have any prior or subsequent conviction for another crime or offense in addition to those convictions included in the expungement application, whether any such conviction was within this State or any other jurisdiction; or1
the person has been convicted of 1[more than one crime under the laws of this State,] multiple crimes1 or a combination of one or more crimes and 1one or more1 disorderly persons or petty disorderly persons offenses under the laws of this State, which crimes or combination of crimes and offenses were 1interdependent or1 closely related in circumstances 1[or in] and were committed as part of a sequence of events that took place within a comparatively short period of1 time, 1regardless of the date of conviction or sentencing for each individual crime or offense,1 and the person 1[has] does1 not otherwise 1[been convicted of] have1 any prior or subsequent 1conviction for another1 crime or offense 1in addition to those convictions included in the expungement application1, whether 1any such conviction was1 within this State or any other jurisdiction.
The person, if eligible, may [,] present the expungement application after the expiration of a period of [10] six years from the date of his most recent conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration [for that crime or for any disorderly persons or petty disorderly persons offense], whichever is later [, present an]. 1The term "fine" as used herein and throughout this section means and includes any fine, restitution, and other court-ordered financial assessment imposed by the court as part of the sentence for the conviction, for which payment of restitution takes precedence in accordance with chapter 46 of Title 2C of the New Jersey Statutes.1 The person shall submit the expungement application to the Superior Court in the county in which the conviction for the crime was adjudged, which contains a separate, duly verified petition as provided in N.J.S.2C:52-7 for [the criminal] each conviction sought to be expunged, [and may also contain additional duly verified petitions for no more than two convictions for any disorderly persons or petty disorderly persons offenses,] praying that the conviction, or convictions if applicable, and all records and information pertaining thereto be expunged. The petition for each conviction appended to an application shall comply with the requirements set forth in N.J.S.2C:52-1 et seq.
Notwithstanding the provisions 1[of the preceding paragraph, a petition] concerning the six-year time requirement, if a fine which is currently subject to collection under the comprehensive enforcement program established pursuant to P.L.1995, c.9 (C.2B:19-1 et al.) is not yet satisfied due to reasons other than willful noncompliance, but the time requirement of six years is otherwise satisfied, the person may submit the expungement application and the court may grant an expungement, provided, however, that if expungement is granted under this paragraph, the court shall provide for the continued collection of any outstanding amount owed that is necessary to satisfy the fine or the entry of civil judgment for the outstanding amount in accordance with section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill).
Additionally, an application1 may be filed and presented, and the court may grant an expungement pursuant to this section, although less than [10] six years [has] have expired in accordance with the 1time1 requirements 1[of the preceding paragraph]1 [where] when the court finds:
(1) 1the fine is satisfied but1 less than [10] six years [has] have expired from the 1date of1 satisfaction 1[of a fine]1, 1[but] and1 the [ten-year] time requirement of six years 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 1[, provided that appropriate arrangements are in place for the person to satisfy any outstanding obligation to pay restitution to a victim]1; or
(2) 1[less than six years have expired from the satisfaction of a fine, but]1 at least five 1but less than six1 years [has] have expired from the date of [his] the most recent conviction, [payment of fine,] 1payment of fine,1 satisfactory completion of probation or parole, or release from incarceration, whichever is later 1[, 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, provided that appropriate arrangements are in place for the person to satisfy any outstanding obligation to pay restitution to a victim]1; 1and1
the person has not been otherwise convicted of a crime, disorderly persons offense, or petty disorderly persons offense since the time of the most recent conviction; and the court finds in its discretion that expungement is in the public interest, giving due consideration to the nature of the offense or offenses, and the applicant's character and conduct since the conviction or convictions.
1[If the person qualifies for expungement under this subsection, but there remains an outstanding balance of restitution, a fine, or other court-ordered financial assessment ordered by the court as part of the sentence for a criminal conviction, the court shall provide for the continued collection of any outstanding restitution and may order the continued collection of other financial assessments in accordance with section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill).]1
In determining whether compelling circumstances exist for the purposes of [paragraph] 1[paragraphs] paragraph1 (1) 1[or (2)]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 or offenses, 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 persons 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: N.J.S.2C:11-1 et seq. (Criminal Homicide), except death by auto as specified in N.J.S.2C:11-5; N.J.S.2C:13-1 (Kidnapping); 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); N.J.S.2C:14-2 (Sexual Assault or Aggravated Sexual Assault); subsection a. of N.J.S.2C:14-3 (Aggravated Criminal Sexual Contact); if the victim is a minor, 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, N.J.S.2C:13-2 (Criminal Restraint) or N.J.S.2C:13-3 (False Imprisonment); N.J.S.2C:15-1 (Robbery); N.J.S.2C:17-1 (Arson and Related Offenses); 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, or causing the child other harm); paragraph (4) of subsection b. of N.J.S.2C:24-4 (Photographing or filming a child in a prohibited sexual act); paragraph (3) of subsection b. of N.J.S.2C:24-4 (Causing or permitting a child to engage in a prohibited sexual act); subparagraph (a) of paragraph (5) of subsection b. of N.J.S.2C:24-4 (Distributing, possessing with intent to distribute or using a file-sharing program to store items depicting the sexual exploitation or abuse of a child); subparagraph (b) of paragraph (5) of subsection b. of N.J.S.2C:24-4 (Possessing or viewing items depicting the sexual exploitation or abuse of a child); N.J.S.2C:28-1 (Perjury); N.J.S.2C:28-2 (False Swearing); 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 than one ounce;
(2) Hashish, where the total quantity sold, distributed or possessed with intent to sell was [five grams or] less than five grams; 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.
(cf: P.L.2015, c.261, s.2)
2. N.J.S.2C:52-3 is amended to read as follows:
2C:52-3. Disorderly persons offenses and petty disorderly persons offenses.
a. Any person who has been convicted of [a] one or more disorderly persons [offense] or petty disorderly persons [offense] offenses 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, may present an expungement application to the Superior Court pursuant to this section. Any person who has been convicted of [a] one or more disorderly persons [offense] or petty disorderly persons [offense] offenses under the laws of this State who has also been convicted of [a prior or subsequent crime] one or more crimes shall not be eligible to apply for an expungement pursuant to this section, but may present an expungement application to the Superior Court pursuant to N.J.S.2C:52-2.
b. Any person who has been convicted of [a] one or more disorderly persons [offense] or petty disorderly persons [offense] offenses 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 who has not been convicted of a disorderly persons or petty disorderly persons offense on more than two other occasions,] may present an expungement application to the Superior Court pursuant to this section if:
the person has been convicted 1, under the laws of this State,1 on 1the same or1 separate occasions of no more than four disorderly persons offenses, no more than four petty disorderly persons offenses, or a combination of no more than four disorderly persons and petty disorderly persons offenses, 1[provided that] and1 the person 1[has] does1 not otherwise 1[been convicted of any additional] have any1 prior or subsequent 1[offenses] conviction for a disorderly persons or petty disorderly persons offense1 , whether within this State or any other jurisdiction, such that the total number of convictions for disorderly persons and petty disorderly persons offenses would exceed four; or
1the person has been convicted of multiple disorderly persons offenses or multiple petty disorderly persons offenses under the laws of this State, or a combination of multiple disorderly persons and petty disorderly persons offenses under the laws of this State, which convictions were entered on the same day, and does not otherwise have any prior or subsequent conviction for another offense in addition to those convictions included in the expungement application, whether any such conviction was within this State or any other jurisdiction; or1
the person has been convicted of multiple disorderly persons offenses or multiple petty disorderly persons offenses under the laws of this State, or a combination of multiple disorderly persons and petty disorderly persons offenses under the laws of this State, which offenses or combination of offenses were 1interdependent or1 closely related in circumstances 1[or in] and were committed as part of a sequence of events that took place within a comparatively short period of1 time, 1regardless of the date of conviction or sentencing for each individual offense,1 and the person 1[has] does1 not otherwise 1[been convicted of] have1 any prior or subsequent 1conviction for another1 offense 1in addition to those convictions included in the expungement application1 , whether within this State or any other jurisdiction.
The person, if eligible, may [,] present the expungement application after the expiration of a period of five years from the date of his most recent conviction, payment of fine, satisfactory completion of probation or release from incarceration [for any disorderly persons or petty disorderly persons offense], whichever is later [, present an]. 1The term "fine" as used herein and throughout this section means and includes any fine, restitution, and other court-ordered financial assessment imposed by the court as part of the sentence for the conviction, for which payment of restitution takes precedence in accordance with chapter 46 of Title 2C of the New Jersey Statutes.1 The person shall submit the expungement application to the Superior Court in the county in which the most recent conviction for [the most recent] a disorderly persons or petty disorderly persons offense was adjudged, which contains a separate, duly verified petition as provided in N.J.S.2C:52-7 for [the disorderly persons or petty disorderly persons] each conviction sought to be expunged, [and which may also contain additional duly verified petitions for no more than two other convictions for disorderly persons or petty disorderly persons offenses,] praying that the conviction, or convictions if applicable, and all records and information pertaining thereto be expunged. The petition for each conviction appended to an application shall comply with the requirements of N.J.S.2C:52-1 et seq.
Notwithstanding the provisions of the 1[preceding paragraph, a petition] five-year time requirement, an application1 may be filed and presented, and the court may grant an expungement pursuant to this section, when the court finds:
(1) 1the fine is satisfied but1 less than five years [has] have expired from the 1date of1 satisfaction 1[of a fine]1, 1[but] and1 the five-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 1[, provided that appropriate arrangements are in place for the person to satisfy any outstanding obligation to pay restitution to a victim]1; or
(2) 1[less than five years have expired from the satisfaction of a fine, but]1 at least three 1but less than five1 years have expired from the date of [his] the most recent conviction, [payment of fine,] 1payment of fine,1 satisfactory completion of probation or parole, or release from incarceration, whichever is later 1[, 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, provided that appropriate arrangements are in place for the person to satisfy any outstanding obligation to pay restitution to a victim]1; 1and1
the person has not been otherwise convicted of a crime, disorderly persons offense, or petty disorderly persons offense since the time of the most recent conviction; and the court finds in its discretion that expungement is in the public interest, giving due consideration to the nature of the offense or offenses, and the applicant's character and conduct since the conviction or convictions.
In determining whether compelling circumstances exist for the purposes of [paragraph] 1[paragraphs] paragraph1 (1) 1[or (2)]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 or offenses, the person's financial condition and other relevant circumstances regarding the person's ability to pay.
(cf: P.L.2015, c.261, s.3)
3. N.J.S.2C:52-5 is amended to read as follows:
2C:52-5. Expungement of Records of Young Drug Offenders. 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 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. The relief of expungement under this section shall be granted only if said person has not, prior to the time of hearing, 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.
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 than one ounce, or
(2) Hashish, where the total amount sold, distributed or possessed with intent to sell was [5 grams or] less than five grams.
(cf: P.L.1987, c.106, s.16)
4. N.J.S.2C:52-8 is amended to read as follows:
2C:52-8. Statements to accompany petition. There shall be attached to a petition for expungement:
a. A statement with the affidavit or verification that there are no disorderly persons, petty disorderly persons or criminal charges pending against the petitioner at the time of filing of the petition for expungement.
b. In those instances where the petitioner is seeking the expungement of a criminal conviction, or the expungement of convictions pursuant to N.J.S.2C:52-3 for multiple disorderly persons or petty disorderly persons offenses 1, all of which were entered the same day, or1 which were 1interdependent or1 closely related in circumstances 1[or in] and were committed as part of a sequence of events that took place within a comparatively short period of1 time, a statement with affidavit or verification that he has never been granted expungement, sealing or similar relief regarding a criminal conviction or convictions for multiple disorderly persons or petty disorderly persons offenses 1, all of which were entered the same day, or1 which were 1interdependent or1 closely related in circumstances 1[or in] and were committed as part of a sequence of events that took place within a comparatively short period of1 time by any court in this State or other state or by any Federal court. "Sealing" refers to the relief previously granted pursuant to P.L.1973, c.191 (C.2A:85-15 et seq.).
c. In those instances where a person has received a dismissal of a criminal charge because of acceptance into a supervisory treatment or any other diversion program, a statement with affidavit or verification setting forth the nature of the original charge, the court of disposition and date of disposition.
(cf: N.J.S.2C:52-8)
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 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 N.J.S.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] N.J.S.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] N.J.S.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.] (Deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill)
(cf: P.L.2009, c.188, s.3)
6. N.J.S.2C:52-15 is amended to read as follows:
2C:52-15. [If] a. Except as provided in subsection b. of this section, 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 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, possesses said records. That designated person shall, except as otherwise provided in this chapter, [insure] ensure 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.
b. Records of the Probation Division of the Superior Court related to restitution, a fine, or other court-ordered financial assessment that remains due at the time the court grants an expungement may be retained as confidential, restricted-access records in the Judiciary's automated system to facilitate the collection and distribution of any outstanding assessments by the comprehensive enforcement program established pursuant to P.L.1995, c.9 (C.2B:19-1 et al.) as ordered by the court. The Administrative Director of the Courts shall ensure that such records are not released to the public. Such records shall be removed from the Judiciary's automated system upon satisfaction of court-ordered financial assessments or by order of the court.
(cf: N.J.S.2C:52-15)
7. N.J.S.2C:52-18 is amended to read as follows:
2C:52-18. Information contained in expunged records may be supplied to the Violent Crimes Compensation [Board] Office, in conjunction with any claim which has been filed with said [board] office 1[, or to the Administrative Office of the Courts in conjunction with the obligation to pay restitution to a victim]1.
(cf: N.J.S.2C:52-18)
8. (New Section) Notwithstanding any provision in this act to the contrary, expunged records may be used by the comprehensive enforcement program established pursuant to P.L.1995, c.9 (C.2B:19-1 et al.) to collect restitution, fines and other court-ordered financial assessments that remain due at the time an expungement is granted by the court. Information regarding the nature of such financial assessments or their derivation from expunged criminal convictions shall not be disclosed to the public. Any record of a civil judgment for the unpaid portion of court-ordered financial obligations that may be docketed after the court has granted an expungement of the underlying criminal conviction shall be entered in the name of the Treasurer, State of New Jersey. The State Treasurer shall thereafter administer such judgments in cooperation with the comprehensive enforcement program without disclosure of any information related to the underlying criminal nature of the assessments.
9. This act shall take effect on the first day of the 1[third] tenth1 month next following enactment.
