RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1359-13T1

APPROVED FOR PUBLICATION IN THE MATTER OF THE June 9, 2014 EXPUNGEMENT OF THE CRIMINAL RECORDS OF G.P.B. APPELLATE DIVISION

____________________________________________________

Submitted May 28, 2014 – Decided June 9, 2014

Before Judges Fisher, Espinosa and O'Connor.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Docket No. 11-EX-12.

Richard T. Burke, Warren County Prosecutor, attorney for appellant State of New Jersey (Kelly Anne Shelton, Assistant Prosecutor, of counsel and on the brief).

Krovatin Klingeman, LLC, attorneys for respondent G.P.B. (Gerald Krovatin and Ernesto Cerimele, on the brief).

The opinion of the court was delivered by

FISHER, P.J.A.D.

In this appeal, we again1 consider whether the so-called

"crime-spree" principle formulated in In re Fontana,

(App. Div. 1976) – a product of our

interpretation of an earlier, differently-worded expungement

1 The parties have alluded to a handful of unreported decisions on this same subject rendered by this court within the last year. statute, N.J.S.A. 2A:164-28 – has application to a petition

seeking expungement pursuant to the current statute, N.J.S.A.

2C:52-2(a), of a single judgment encompassing multiple crimes

committed on two different days.

The record demonstrates that, on September 16, 1999,

petitioner pleaded guilty to one count of third-degree

conspiracy, N.J.S.A. 2C:5-2, and three counts of third-degree

making gifts to public servants, N.J.S.A. 2C:27-6(b). At his

plea hearing, petitioner acknowledged he and another agreed to

make a monetary campaign contribution to one municipal official

on April 19, 1999, and to two other municipal officials on April

20, 1999, to secure their opposition to a municipal resolution.

This illicit agreement also included petitioner's promise to

make additional campaign contributions once the municipal

officials voted against the resolution. At sentencing, the

conspiracy conviction was merged into the convictions on the

three other crimes, and petitioner was sentenced to concurrent

three-year probationary terms conditioned upon a thirty-day stay

in the county jail; community service, fines and other penalties

were also imposed.

On November 15, 2012, petitioner filed this action, seeking

expungement of records relating to the 2001 judgment of

conviction. The State objected and, following argument, the

2 A-1359-13T1 trial judge granted the application for reasons set forth in an

oral decision. In appealing, the State argues that the judge

erred in granting expungement because "petitioner was convicted

of three separate crimes committed on two separate dates."

The expungement of criminal records is available only if

authorized by legislation. There is no constitutional or common

law right to the expungement of records relating to a criminal

conviction.2 The order under review was based solely on the

trial judge's interpretation of N.J.S.A. 2C:52-2(a), which

states, in pertinent part, that a person's criminal records may

be expunged when that person

has been convicted of a crime under the laws of this State and . . . has not been convicted of any prior or subsequent crime . . ., after the expiration of a period of 10 years . . . .

[Emphasis added.]

The statute imposes other requirements, but we need not consider

them because, in seeking reversal, the State argues only that

petitioner was convicted of "crimes" not "a crime" or, stated

another way, petitioner failed to prove he had not been

convicted of any prior or subsequent crime because he pleaded

2 It is not clear whether arrest records – generated through law enforcement abuses – may be expunged as an equitable remedy. See Bd. of Educ., Middletown Twp. v. Middletown Teachers Educ. Ass'n,

(Ch. Div. 2003).

3 A-1359-13T1 guilty to multiple crimes and each was prior or subsequent to

the other.

Although the trial judge did not utter the words "crime

spree" in his opinion, we assume he applied this principle in

granting relief to petitioner. The "crime spree" principle was

originally enunciated in Fontana, and recently examined – in

connection with the current expungement statute – in In re Ross,

(App. Div. 2008). In his oral decision, the

judge referred to another recent decision, In re Criminal

Records of R.Z.,

(App. Div. 2013), and

concluded that petitioner's crimes – participating in a multi-

act conspiracy over the course of two days to unlawfully obtain

a favorable determination on a pending municipal matter – were

"so closely tied together" as to permit the relief sought.

We reject the trial judge's interpretation and application

of N.J.S.A. 2C:52-2(a). In Ross, we held the statutory language

in question – a person who was convicted of "a crime" may obtain

expungement if he or she "has not been convicted of any prior or

subsequent crime," N.J.S.A. 2C:52-2(a) – is "clear and

unambiguous on its face and is susceptible of only one

interpretation," namely, that "the words 'prior' and

'subsequent' do not modify the term 'conviction[,]'" but instead

"modify the term 'crime,' which leads to the conclusion that if

4 A-1359-13T1 two crimes are committed on separate occasions, they are

precluded from expungement regardless of whether the two crimes

carry a single sentencing date and therefore a single date of

conviction."

. We agree

with that interpretation.3 The Legislature used the word

"crime," not "conviction," in N.J.S.A. 2C:52-2(a), and did so in

the face of our interpretation in Fontana of the earlier

statute, N.J.S.A. 2A:164-28, which used the word "conviction"

instead of "crime." We assume the Legislature understood the

distinction when it selected the language of the current statute

– action very likely intended to avoid the application of the

amorphous "crime-spree" concept in future matters – and we are,

therefore, bound by the Legislature's unambiguous command in

such matters.

We lastly note that in a more recent unpublished opinion,

we again adhered to Ross's interpretation of the statutory

language in question when reversing an order that permitted

expungement of criminal records where the petitioner was

convicted of drug crimes that occurred five days apart. We are

3 We do not agree with the trial judge's apparent determination that R.Z. supports his application of the so-called "crime spree" principle to petitioner's multiple crimes over two days. In R.Z., we adhered to Ross in holding that a petitioner had not sustained his burden to prove "he committed his crimes concurrently, and not on 'separate occasions.'"

(quoting

).

5 A-1359-13T1 mindful that the Supreme Court has granted certification in that

matter, In re Expungement Petition of J.S., __ N.J. __ (April

11, 2014), and may soon either endorse or reject Ross's

interpretation. Until instructed otherwise, however, we will

continue to adhere to Ross because we agree with its

interpretation of the statute. In applying Ross's holding, we

must set aside the expungement order in question. In entering

his guilty plea, petitioner admitted the commission of crimes on

April 19 and April 20, 1999. N.J.S.A. 2C:52-2(a) only permits

expungement when that relief is sought by a person who "has been

convicted of a crime," not crimes.4

Reversed.

4 Although our decision reverses the expungement order and would, therefore, ordinarily deprive petitioner of the confidentiality of his 2001 crimes previously granted by the trial court, we have nevertheless kept petitioner's identity confidential in this opinion in light of the possibility that the Supreme Court's decision in J.S. may prove favorable to him. We do not mean to suggest, however, that our judgment is stayed pending further proceedings, if any, in the Supreme Court. We intimate no view whether a stay should be entered if petitioner seeks review in the Supreme Court.

6 A-1359-13T1