IN THE MATTER OF THE APPLICATION
FOR THE EXPUNGEMENT OF THE
CRIMINAL RECORD BELONGING TO J.W.
_____________________________
Submitted January 25, 2018 – Decided February 26, 2018
Before Judges Simonelli and Haas.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County.SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1730-16T3
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
PER CURIAM
The State of New Jersey appeals from the November 17, 2016
Law Division order granting respondent J.W.'s petition for
expungement of all records relating to her arrest and conviction
for third-degree endangering the welfare of a child for causing
the child harm that would make the child an abused or neglected
child,
to the expungement statute,
expungement of J.W.'s conviction. Accordingly, we reverse.
J.W. was a nanny for two children, ages one and three. On
August 10, 2007, she dosed the children with Benadryl, an
antihistamine drug, by adding it to their apple juice. The
incident came to light when a friend of J.W. divulged the incident
to his therapist. J.W. was charged under
two counts of second-degree endangering the welfare of a child by
abuse or neglect. On February 27, 2008, J.W. pled guilty to one
count of third-degree endangering the welfare of a child by abuse
or neglect. The trial court imposed a three-year term of probation
subject to 180 days in the county jail.
At the time of J.W.'s conviction,
provided as follows:
Any person having a legal duty for the care
of a child or who has assumed responsibility
for the care of a child who engages in sexual
conduct which would impair or debauch the
morals of a child, or who causes the child
harm that would make the child an abused or
neglected child as defined in [
1,
guilty of a crime of the second degree. Any
other person who engages in conduct or who
causes harm as described in this subsection
to a child under the age of [sixteen] is guilty
of a crime of the third degree.
2 A-1730-16T3
[(Emphasis added).]
The expungement statute in effect at the time of J.W.'s conviction
provided as follows:
Records of conviction for the following crimes
specified in the New Jersey Code of Criminal
Justice shall not be subject to expungement:
[
Homicide), except death by auto as specified
in [
(Kidnapping); section 1 of [N.J.S.A. 2C:13-6]
(Luring or Enticing); section 1 of [N.J.S.A.]
2C:13-8 (Human Trafficking); [N.J.S.A.]
2C:14-2 (Sexual Assault or Aggravated Sexual
Assault); [
Criminal Sexual Contact); if the victim is a
minor, [
Contact); if the victim is a minor and the
offender is not the parent of the victim,
[
[
[
2C:17-1 (Arson and Related Offenses);
[
of a child by engaging in sexual conduct which
would impair or debauch the morals of the
child); [
the welfare of a child); [
b.(3) (Causing or permitting a child to engage
in a prohibited sexual act); [
4 b.(5)(a) (Distributing, possessing with
intent to distribute or using a file-sharing
program to store items depicting the sexual
exploitation or abuse of a child); [N.J.S.A.]
2C:24-4 b.(5)(b) (Possessing items depicting
the sexual exploitation or abuse of a child);
[
2C:28-2 (False Swearing); [
b.(4) (Knowingly promoting the prostitution of
the actor's child); section 2 of [N.J.S.A.
2C:38-2] (Terrorism); subsection a. of section
3 of [N.J.S.A. 2C:38-3] (Producing or
Possessing Chemical Weapons, Biological
3 A-1730-16T3
Agents or Nuclear or Radiological Devices);
and conspiracies or attempts to commit such
crimes.
[
In 2013, the Legislature amended
forth the crime of endangering the welfare of a child in two
separate paragraphs:
(1) Any person having a legal duty for the
care of a child or who has assumed
responsibility for the care of a child who
engages in sexual conduct which would impair
or debauch the morals of the child is guilty
of a crime of the second degree. Any other
person who engages in conduct or who causes
harm as described in this paragraph to a child
is guilty of a crime of the third degree.
(2) Any person having a legal duty for the
care of a child or who has assumed
responsibility for the care of a child who
causes the child harm that would make the
child an abused or neglected child as defined
in [
N.J.S.A. 9:6-8.21] is guilty of a crime of the
second degree. Any other person who engages
in conduct or who causes harm as described in
this paragraph to a child is guilty of a crime
of the third degree.
[(Emphasis added.)]
In 2016, the Legislature amended
provide as follow:
Records of conviction for the following crimes
specified in the New Jersey Code of Criminal
Justice shall not be subject to expungement:
[
Homicide), except death by auto as specified
4 A-1730-16T3
in [
vehicular homicide as specified in section 1
of [N.J.S.A. 2C:11-5.3]; [
(Kidnapping); section 1 of [N.J.S.A. 2C.2C:13-
6] (Luring or Enticing); section 1 of
[N.J.S.A. 2C:13-8] (Human Trafficking);
[
Aggravated Sexual Assault); subsection a. of
[
Sexual Contact); if the victim is a minor,
subsection b. of [
Sexual Contact); if the victim is a minor and
the offender is not the parent of the victim,
[
[
[
2C:17-1 (Arson and Related Offenses);
subsection a. of [N.J.S.A.] 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.A.] 2C:24-4
(Photographing or filming a child in a
prohibited sexual act); paragraph (3) of
subsection b. of [
or permitting a child to engage in a
prohibited sexual act); subparagraph (a) of
paragraph (5) of subsection b. of [
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.A.] 2C:24-4
(Possessing or viewing items depicting the
sexual exploitation or abuse of a child);
[
2C:28-2 (False Swearing); paragraph (4) of
subsection b. of [
promoting the prostitution of the actor’s
child); section 2 of [N.J.S.A. 2C:38-2]
(Terrorism); subsection a. of section 3 of
[
Chemical Weapons, Biological Agents or Nuclear
5 A-1730-16T3
or Radiological Devices); and conspiracies or
attempts to commit such crimes.
[(Emphasis added).]
In August 2016, J.W. filed a petition for expungement pursuant
to
finding the 2016 amendment to
expungement for convictions for the nonsexual offense of
endangering the welfare of a child by abuse or neglect.
Distinguishing In re Expungement of W.S.,
(App. Div. 2004), the court noted that the crime of endangering
the welfare of a child by abuse or neglect was not a lesser
included offense of endangering the welfare of a child by sexual
conduct, and the two crimes differed in both the nature of the
offense, collateral consequences, and penalties. The court found
that the pre-amended expungement statute only prohibited a
conviction for endangering the welfare of a child by engaging in
sexual conduct which would impair or debauch the moral of a child.
The court noted that the Legislature amended
4(a) into two subsections and inserted the term "causes harm" in
both, meaning the "harm" in subsection (1) refers to harm caused
by sexual conduct, whereas the "harm" in subsection (2) refers to
harm caused by nonsexual conduct. The court then interpreted the
parenthetical language in the 2016 amendment to
6 A-1730-16T3
2(b), "or causing the child other harm," as referring only to
other harm resulting from sexual conduct under
4(a)(1). In reaching this conclusion, the court relied on the
Senate Judiciary Committee's statement commenting that the
function of the 2016 amendment was to "update, using the accepted
current citation format, the statutory citations for the list of
criminal convictions that are not subject to expungement; such
updating does not add any additional crimes to this list."
Statement of the Senate Judiciary Committee to Assembly Bills 206,
471, 1663, 2879, 3060 and 3108 (May 7, 2015). The court concluded
that if a conviction for a nonsexual offense under
4(a) was eligible for expungement prior to the 2016 amendment and
the Legislature's intent was not to add any additional crimes to
the list of crimes barred from expungement, a conviction for a
crime under
the child abused or neglected is still eligible for expungement.
We disagree.
Our review of a trial court's statutory interpretation is de
novo. Beim v. Hulfish,
a statute, our 'overriding goal is to determine as best we can the
intent of the Legislature, and to give effect to that intent.'"
Bermudez v. Kessler Inst. for Rehab.,
7 A-1730-16T
As our Supreme has held:
When interpreting a statute, our main
objective is to further the Legislature's
intent. To discern the Legislature's intent,
courts first turn to the plain language of the
statute in question. In reading the language
used by the Legislature, the court will give
words their ordinary meaning absent any
direction from the Legislature to the
contrary. 'If the plain language leads to a
clear and unambiguous result, then [the]
interpretive process is over.'
Where the plain meaning does not point
the court to a 'clear and unambiguous result,'
it then considers extrinsic evidence from
which it hopes to glean the Legislature's
intent. Included within the extrinsic evidence
rubric are legislative history and statutory
context, which may shed light on the drafters'
motives. Likewise, interpretations of the
statute and cognate enactments by agencies
empowered to enforce them are given
substantial deference in the context of
statutory interpretation.
[TAC Assocs. v. N.J. Dep't of Envtl. Prot.,
original) (citations omitted).]
"The Legislature's intent is the paramount goal when
interpreting a statute and, generally, the best indicator of that
intent is the statutory language." DiProspero v. Penn,
477, 492 (2005). Thus, "[t]he plain language of the statute is
our starting point." Patel v. N.J. Motor Vehicle Comm'n, 200 N.J.
8 A-1730-16T3
413, 418 (2009). In considering a statute's language, we are
guided by the legislative directive that
words and phrases shall be read and construed
with their context, and shall, unless
inconsistent with the manifest intent of the
legislature or unless another or different
meaning is expressly indicated, be given their
generally accepted meaning, according to the
approved usage of the language. Technical
words and phrases, and words and phrases
having a special or accepted meaning in the
law, shall be construed in accordance with
such technical or special and accepted
meaning.
[N.J.S.A. 1:1-1.]
"Courts may not rewrite a plainly written law or presume that the
Legislature intended something other than what it expressed in
plain words." In re Plan for Abolition of the Council on
Affordable Hous.,
a statute is clear, a court's task is complete." Ibid.
The Legislature's stated purpose in enacting
2 was to
provid[e] relief to the reformed offender who
has led a life of rectitude and disassociated
himself with unlawful activity, but not to
create a system whereby persistent violators
of the law or those who associate themselves
with continuing criminal activity have a
regular means of expunging their police and
criminal records.
[N.J.S.A. 2C:52-32.]
9 A-1730-16T
consequences imposed upon otherwise law-abiding citizens who have
had a minor brush with the criminal justice system.'" The
Legislature intended the statute to 'provid[e] relief to the one-
time offender who has led a life of rectitude and disassociated
himself with unlawful activity[.]'" In re Expungement of J.S.,
(2012). Nevertheless, the statute provides a list of crimes barred
from expungement.
Here, the plain language of
prohibits the expungement of J.W's conviction. The 2016 amendment
explicitly prohibits the expungement of convictions pursuant to
"subsection a. of N.J.S.A. 2C:24-4[.]" At the time of J.W.'s
conviction,
of endangering the welfare of a child if he or she "engage[d] in
sexual conduct which would impair or debauch the morals of a child,
or . . . [caused] the child harm that would make the child an
abused or neglected child[.]" The parenthetical in the 2016
amendment to
of a child by either engaging in sexual conduct that would impair
or debauch the morals of a child or causing the child "other harm."
Given that the only "other harm" referred to in the pre-amended
10 A-1730-16T3
or neglected, the "other harm" specified in the parenthetical of
the 2016 amendment to
would make the child an abused or neglected child" under
The "other harm" in the parenthetical of the 2016 amendment
cannot refer back to harm caused by sexual conduct or to the
impairment or debauchment of a child's morals because the rules
of statutory interpretation require that statutes be construed in
a manner that gives effect to every word so no part is rendered
superfluous. Otherwise, if we adopted J.W.'s reading of
2C:52-2(b) and found that "other harm" refers to only harm from
sexual conduct, the statute would become redundant.
"Punctuation is part of an act and may be considered in its
interpretation." In re Estate of Fisher,
(App. Div. 2015). "The word 'or' in a statute is to be considered
a disjunctive particle indicating an alternative." Ibid.
(citation omitted). Thus, where "items in a list are joined by a
comma . . ., with an 'or' preceding the last item, the items are
disjunctive," or "distinct and separate from each other." State
v. Frank,
phrases "who engages in sexual conduct which would impair or
debauch the morals of a child" and "who causes the child harm that
would make the child an abused or neglected child" are separated
11 A-1730-16T3
by a comma and the word "or" indicating they are disjunctive and
refer to two distinct harms. Paragraph (1) of
describes one harm -- the impairment and debauchment of a child's
morals, and paragraph (2) describes the other harm -- abuse and
neglect of a child. Therefore, because J.W. was convicted under
the pre-amended
a child by abuse or neglect and
convictions under
the court erred in granting J.W.'s petition.
Even if we found that
because it does not specify which paragraph of
applies to the bar against expungement, the legislative history
and general statutory scheme of
that the statute bars the expungement of convictions for
endangering the welfare of a child by abuse or neglect.
are barred from expungement because the Legislature used no
limiting language when it cited to
the Legislature includes limiting language in one part of a
statute, but leaves it out of another section in which the limit
could have been included, we infer that the omission was
intentional." Ryan v. Renny,
2C:52-2(b) specifies paragraphs of subsections of certain crimes
12 A-1730-16T3
barred from expungement, but does not do so when citing to
2C:24-4(a). For example, in listing crimes barred from expungement
under subsection b. of
specifies as follows:
paragraph (4) of subsection b. of [N.J.S.A.]
2C:24-4 (Photographing or filming a child in
a prohibited sexual act); paragraph (3) of
subsection b. of [
or permitting a child to engage in a
prohibited sexual act); subparagraph (a) of
paragraph (5) of subsection b. of [N.J.S.A.]
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 [
(Possessing or viewing items depicting the
sexual exploitation or abuse of a child)[.]
The Legislature made very specific and narrow references when
it chose to limit the scope of the bar to expungement for those
crimes. The Legislature could have specified which paragraphs of
subsection a. of
application to convictions arising from sexual conduct or from
nonsexual conduct resulting in abuse or neglect. However, the
Legislature chose not to do so, indicating it did not intend to
limit the prohibition against expungement of a conviction under
endangers the welfare of a child.
13 A-1730-16T3
Given the express references in
paragraphs of subsections of other crimes listed in the statute,
we cannot insert limiting language that the Legislature could have
included with respect to the bar on expunging convictions under
Light Co. v. Melcar Util. Co.,
that "[i]n light of its express reference to the right to pursue
civil remedies elsewhere in . . . [N.J.S.A. 48:2-80], we cannot
insert language that the Legislature could have included in
subsection (d) -- but did not.").
In addition, the Legislature's focus was not only on offenses
arising from sexual conduct, as
expungement of convictions arising from nonsexual conduct, such
as kidnapping,
2, and perjury,
minors, such as criminal restraint,
imprisonment,
limiting language and the inclusion of nonsexual offenses barred
from expungement, the statutory scheme of
indicates the prohibition against expungement is not limited to a
specific type of conduct or harm underlying a conviction pursuant
to
14 A-1730-16T3
Furthermore, the parenthetical language in the pre-amended
or amended
prohibition against expungement. In In re Expungement of W.S.,
expungement of any convictions under
fact that the parenthetical following the citation to
2C:14-2 only referred to "aggravated sexual assault," but not to
"sexual assault" generally, because the parenthetical was
descriptive only and incomplete. Ibid. We noted that "when the
Legislature intended to exclude a lesser degree of one of these
enumerated offenses from the prohibition against expungement, it
directly expressed that intent by specifically 'except[ing] death
by auto as specified in section 2C:11-5' from the prohibition
against expungement." Id. at 312. Likewise, here, when the
Legislature intended to include a subparagraph or subsection of
one of the enumerated offenses barred from expungement, it did so
by referencing specific subsections or paragraphs.
Moreover, "the Legislature that enacted
presumed to have been aware of the judicial construction of the
expungement statute's earlier version[.]" In re Expungement
Petition of J.S.,
Expungement of W.S. we interpreted the parentheticals in
2C:52-2(b) as descriptive only and deferred to the citations when
15 A-1730-16T3
they were more expansive, we conclude the Legislature acted
deliberately when it later amended the reference to
4(a) in
child other harm," but not including a particular paragraph when
citing to
against expungement. The 2016 amendment to
made the parenthetical complete and accurate to reflect the conduct
barred from expungement described in
not alter the citation, which previously included convictions
arising from endangering the welfare of a child by sexual and
nonsexual conduct.
Lastly, the Senate Judiciary Committee's statement commented
that the amendments to
accepted current citation format, the statutory citations for the
list of criminal convictions that are not subject to
expungement[,]" but that "such updating does not add any additional
crimes to this list." Prior the 2016 amendment,
2(b) specified that convictions under "N.J.S.2C:42-4 a." could not
be expunged. The 2016 amendment altered the citation to the
statute to read "subsection a. of N.J.S.A. 2C:24-4," making it
conform to the current citation format. The amendment did not
expand or limit which part of subsection a. of
applied to the bar against expungement, keeping in line with the
16 A-1730-16T3
Legislature's expressed intent not to add any additional crimes
to the list of crimes barred.
Both prior to and after 2016,
the offense of endangering the welfare of a child as engaging in
sexual conduct which would impair or debauch the morals of the
child or nonsexual conduct that causes the child harm that would
make the child an abused or neglected child. Therefore, reading
the addition of the parenthetical language in 2016 amendment, "or
causing the child other harm[,]" as referring to conduct causing
the abuse or neglect of a child complies with the Legislature's
intent not to add additional crimes to the list of crimes barred
from expungement, as it still describes conduct included within
the scope of
child. Thus, the 2016 amendment did not limit or expand the scope
of the bar against expungement of convictions under
4(a), but only updated the citation format and made the
accompanying parenthetical more complete. Accordingly, we reverse
the grant of J.W.'s petition for expungement.
Reversed.
