State v. Blazanin
State v. Blazanin
Opinion of the Court
The opinion of the court was delivered by
The Monmouth County Prosecutor appeals the Law Division Judge’s action in an expungement proceeding brought by respondent Emilio Blazanin. The judge treated what was Blazanin’s
The facts are not in dispute. Blazanin pled guilty in Monmouth County under Indictment No. 1-691-69, to petit larceny in violation of N.J.S.A. 2A:119-2 on December 11, 1970.
The State objected to the expungement proceeding in the Law Division. It takes the position that reopening old Title 2A convictions for expungement proceedings presents serious problems. The State points out that it will be impossible in many cases to determine the nature of the crime committed because of the lapse of time and the destruction of records as well as any available evidence. The State argues that State v. R.G.W., 208 N.J.Super. 60, 61, 504 A.2d 1211 (App.Div. 1986), which held that the court should apply the shorter waiting period for disorderly persons offenses because the offense was a disorderly persons offense under 2C at the time of the petition, was incorrectly decided. Alternatively, the State argues that R.G.W. is distinguishable because the court there was merely applying a new procedural rule under Title 2C to a Title 2A conviction, and N.J.S.A. 2C:1-1c allows the application of Title 2C procedural rules to pending Title 2A prosecutions.
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 ... to the Superior Court ... praying that such conviction and all records and information pertaining thereto be expunged.
A defendant convicted of a disorderly persons offense may seek expungement, after a five year waiting period, where they have not been convicted of a prior or subsequent indictable offense or more than three additional disorderly persons offenses. N.J.S.A. 2C:52-3. The expungement statute states in N.J.S.A. 2C:52-32 that:
This chapter shall be construed with the primary objective of providing relief to the one-time offender who has led a life of rectitude and disassociated himself with unlawful activity, but not to create a system whereby periodic violators of the law or those who associate themselves with criminal activity have a regular means of expunging their police and criminal records.
A petition for expungement will be denied where the petitioner “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.” N.J.S.A. 2C:52-14e. Moreover, while a defendant is still eligible for expungement where he is convicted of up to three disorderly persons offenses, a defendant convicted of more than one indictable offense is precluded from obtaining expungement as to any of his convictions. N.J.S.A. 2C:52-2a; State v. A.N.J., 98 N.J. 421, 427, 487 A.2d 324 (1985); State v. H.J.B., 240 N.J.Super. 216, 220, 572 A.2d 1205 (Law Div. 1990). Noting the distinction between disorderly persons offenses and crimes, the Supreme Court concluded that, unlike the eligibility requirements for disorderly persons offenses, once a defendant is convicted of two indictable offenses no relief may be granted. State v. A.N.J., supra, 98 N.J. at 427, 487 A.2d 324. See also State v. D’Angerio, 124 N.J.Super. 240, 305 A.2d 827 (Law
In drafting the expungement statute the Legislature clearly understood the difference between an indictable offense or a crime and a disorderly persons offense and intended that they be treated differently. See N.J.S.A. 2C:52-2a; N.J.S.A. 2C:52-3. Title 2C defines the difference between a crime and a disorderly persons offense in N.J.S.A. 2C:l-4a and b:
An offense defined by this code or by any other statute of this State for which a sentence of imprisonment in excess of 6 months is authorized, constitutes a crime within the meaning of the Constitution of this State____
An offense is a disorderly persons offense if it is so designated in this code or in a statute other than this code____ Disorderly persons offenses and petty disordex-ly persons offenses are petty offenses and are not crimes within the meaning of the Constitution of this State____
Although “anomalies” may arise in the application of the expungement statute, the “courts must follow the act.” State v. A.N.J., supra, 98 N.J. at 427, 487 A.2d 324. Where the plain language of the statute is inconsistent, we must interpret the statute consistent with its internal structure. Id. at 424, 487 A.2d 324; Perez v. Pantasote, Inc., 95 N.J. 105, 116, 469 A.2d 22 (1984); State v. H.J.B., supra, 240 N.J.Super. at 220, 572 A.2d 1205; In re F.A.U., 190 N.J.Super. 245, 247-48, 463 A.2d 344 (App.Div. 1983). Where the inconsistency is irreconcilable, the “most that any court can do ... is to draw attention to the perceived inequitable or anomalous result.”' In re F.A.U., supra, 190 N.J.Super. at 248, 463 A.2d 344 (citing Dacunzo v. Edgye, 19 N.J. 443, 454, 117 A.2d 508 (1955)).
N.J.S.A. 2C:1-1b states that offenses committed before the effective date of the Code are governed by the prior law “as if this code were not in force.” Subsection c provides three exceptions to this general rule for pending cases or cases “initiated after the effective date of the code involving an offense committed prior to such date.” N.J.S.A. 2C:1-1c states:
(1) The procedural provisions of the code shall govern, insofar as they are justly applicable and their application does not introduce confusion or delay;
*227 (2) The court, with the consent of the defendant, may impose sentence under the provisions of the code applicable to the offense and the offender.
(3) The court shall, if the offense committed is no longer an offense under the provisions of the code, dismiss such prosecution.
A pending case has been defined to include an undecided appeal. State v. Molnar, 81 N.J. 475, 488, 410 A.2d 37 (1980). However, no reported decision holds that an expungement proceeding qualifies as a pending case for purposes of N.J.S.A. 2C:1-1c.
The expungement statute and the cases interpreting it clearly state that a person convicted of two indictable offenses may not seek relief thereunder. N.J.S.A. 2C:52-2; State v. A.N.J., supra, 98 N.J. at 427, 487 A.2d 324. Thus, the Law Division strained to grant Blazanin’s petition by considering his first conviction for larceny in 1970 as a disorderly persons offense. In doing so the judge erred. The apparent basis for his treating the 1970 petit larceny conviction as a disorderly persons conviction under 2C:20-2b(3) was his reliance on our holding in State v. R.G.W., supra, 208 N.J.Super. at 61, 504 A.2d 1211. There, we affirmed the Law Division’s treatment of the petitioner’s August 1977 embezzlement conviction as a disorderly persons offense for purposes of determining the appropriate waiting period under the expungement statute. Under N.J.S.A. 2C:52-3 a petitioner need only wait five years before filing a petition for expungement of a disorderly persons offense, while N.J.S.A. 2C:52-2 requires a petitioner to wait ten years before seeking expungement of an indictable offense. Thus, in State v. R.G.W. we concluded that because the petitioner’s embezzlement conviction was only a disorderly persons offense under N.J.S.A. 2C:20-2b(3), he need only wait five years to file his petition for expungement. State v. R.G.W., supra, 208 N.J.Super. at 61, 504 A.2d 1211.
We do not consider State v. R.G.W. dispositive here. R.G.W. is a terse one-paragraph opinion, affirming on the unreported decision below. Although uninformative, it dealt with the applicable waiting period to apply for expungement under the statute, a procedural rule, and not the statute’s eligibility requirements, a substantive rule of law. Thus, R.G.W. arguably was within the
Nonetheless, we conclude that 2C:1-1c is not applicable to expungement proceedings as they are not “pending cases.” The exception in 2C:1-1c(1) allows courts to apply new procedural rules to pending cases, i.e., from initial prosecution of the offense up until final disposition on appeal. State v. Molnar, supra, 81 N.J. at 488, 410 A.2d 87. State v. R.G.W. did not address 2C:1-1c’s pending case requirement. 208 N.J.Super. at 61, 504 A.2d 1211.
Aside from the error in treating a misdemeanor conviction as a disorderly persons conviction, the Law Division Judge here simply disregarded the plain language of N.J.S.A. 2C:52-3 which prohibits expungement of a disorderly persons offense where the petitioner has a subsequent conviction for an indictable offense. Even if we assume, arguendo, that it was proper to consider the first larceny conviction a disorderly persons offense, the court was
Moreover, Blazanin’s theft of the $120 wheels in 1970 would not necessarily constitute a disorderly persons offense today. It is likely that the value of such wheels today would exceed $200, and therefore, their theft would not qualify as a disorderly persons offense. N.J.S.A. 2C:20-2b(3).
The Law Division Judge also determined that principles of equity and logic required expungement of both convictions because it would not make sense to expunge the more serious indictable offense and not the lesser disorderly persons offense. We have addressed this very issue, concluding that while anomalous results may occur, the court is nonetheless required to follow the plain language of the statute:
[Whatever inequity or even anomaly the trial judge may have perceived to exist by virtue of being able to expunge F.A.U.’s conviction for the criminal offense of breaking, entering and attempted larceny .... but not his conviction for the disorderly persons offense because of the restrictive criteria of N.J.S.A. 2C:52-3, such cannot be corrected or remedied by ignoring the peremptory command of the statute. The most that any court can do in such a situation is to draw attention to the perceived inequitable or anomalous result.
[In re F.A.U., supra, 190 N.J.Super. at 248, 463 A.2d 344 (citing Dacunzo v. Edgye, supra, 19 N.J. at 454,117 A.2d 508 ].
In the present case, the Law Division Judge created the anomalous result by treating the 1970 petit larceny conviction, an indictable offense in 1970, as a disorderly persons offense under N.J.S.A. 2C:20-2b(3). If the judge had treated the 1970 petit larceny conviction like the indictable offense it was, N.J.S.A. 2C:52-2a clearly would have precluded Blazanin’s petition for expungement. Hence, regardless of any equitable concerns the
In addition, the denial of Blazanin’s petition for expungement is ■ consistent with the statute’s clearly stated intent — “providing relief to the one-time offender who has led a life of rectitude and disassociated himself with unlawful activity.” N.J.S.A. 2C:52-32. Blazanin is not a one-time offender. Although his convictions are twenty-seven years old and were committed only weeks apart, while he was a teenager, he was convicted of two separate indictable offenses. Neither of Blazanin’s convictions qualified for expungement and his petition should have been denied.
Reversed.
The charge was a misdemeanor under the statute then in effect. The first count of the indictment, breaking and entering with intent to steal (then N.J.S.A. 2A:94-1), was dismissed upon the State's motion.
The value of comparable wheels at today's prices, taking inflation into account, was not considered during the expungement proceeding.
Apparently, the possession of marijuana charge was dismissed and the State does not challenge that portion of the court's order expunging that arrest.
The lower court’s opinion was an oral decision and was not published. Id. at 61, 504 A.2d 1211. The basis of the trial court’s decision is thus unspecified.
Reference
- Full Case Name
- STATE OF NEW JERSEY v. EMILIO BLAZANIN, DEFENDANT-RESPONDENT
- Cited By
- 3 cases
- Status
- Published