New law Revises eligibility for expungement of criminal and juvenile delinquency records

This law makes some changes to the criteria for expungement of criminal convictions and adjudications of delinquency and also adds to the list of crimes that may not be expunged.

Expungement of Indictable Offenses Generally Section 1 of the law reduces the amount of time that must elapse before a person convicted of an indictable offense is eligible for expungement. Under current law, subsection a. of N.J.S.2C:52-2 requires a person to wait 10 years from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later, before applying to expunge a conviction for an indictable offense. The law would allow expungement for an indictable offense although less than 10 years has expired if the court finds that:

· 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 by the court, or could not do so due to compelling circumstances affecting his ability to satisfy the fine; or
· At least five years has expired from the date of 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, 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.

Crimes that May Not Be Expunged Section 1 of the law also adds the following crimes to the list of crimes that cannot be expunged:
· Human Trafficking, section 1 of P.L.2005, c.77 (C.2C:13-8);
· Causing or permitting a child to engage in a prohibited sexual act, N.J.S.2C:24 4b(3);
· Selling or manufacturing child pornography, N.J.S.2C:24:4b(5)(a);
· Knowingly promoting the prostitution of the actor's child, N.J.S.2C:34-1b(4);
· Terrorism, section 2 of P.L.2002, c.26 (C.2C:38-2); and
· Producing or Possessing Chemical Weapons, Biological
Agents or Nuclear or Radiological Devices, subsection a. of section 3 of P.L.2002, c.26 (C.2C:38-3).

Expungement of Certain Drug Crimes Section 1 of the law also allows expungement of certain convictions for the sale or distribution of a controlled dangerous substance (CDS) or possession thereof with intent to sell. Expungement would be allowed if the convictions involve crimes of the third or fourth degree, and 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. Under current law, a person may not have his conviction for the sale or distribution of a CDS or possession thereof with intent to sell expunged unless it relates to the sale, distribution, or possession with intent to sell a small amount of marijuana or hashish.

Expungement of Delinquency Adjudications Section 2 of the law changes the criteria for expunging a record of an adjudication of delinquency. Under current law, to expunge an adjudication of delinquency, a minimum of five years must elapse after final discharge of the person from legal custody or supervision or after the entry of any other court order not involving custody or supervision. Also, the person must not have been convicted of a crime, or a disorderly or petty disorderly persons offense, or adjudged a delinquent, or in need of supervision, during the five years prior to the filing of the petition for expungement. Section 2 of the law would except periods of post incarceration supervision pursuant to section 25 of P.L.1982, c.77(C.2A:4A-44) from these five-year periods.