In re the Expungement Petition of D.H.

6 A.3d 421, 204 N.J. 7, 69 A.L.R. 6th 673, 31 I.E.R. Cas. (BNA) 752, 2010 N.J. LEXIS 1128
CourtSupreme Court of New Jersey
DecidedOctober 27, 2010
StatusPublished
Cited by17 cases

This text of 6 A.3d 421 (In re the Expungement Petition of D.H.) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Expungement Petition of D.H., 6 A.3d 421, 204 N.J. 7, 69 A.L.R. 6th 673, 31 I.E.R. Cas. (BNA) 752, 2010 N.J. LEXIS 1128 (N.J. 2010).

Opinions

Justice RIVERA-SOTO

delivered the opinion of the Court.

A public official pled guilty to a disorderly persons offense that directly involved or touched the official’s public office. As part of her plea agreement, the public official consented to the entry of a statutorily mandated order of forfeiture of public employment, that is, an order whereby the public official forfeited her public employment and was “forever disqualified from holding any office or position of honor, trust or profit under this State or any of its administrative or political subdivisions.” N.J.S.A. 2C:51-2(d). Several years later, the former public official sought relief under New Jersey’s expungement statute, N.J.S.A 2C:52-1 to -32, seeking an order that “such conviction and all records and information pertaining thereto be expunged.” N.J.S.A 2C:52-3. As part of that application, the former public official also sought to avoid the effect of the mandatory order of forfeiture of public employment, asserting that, along with her disorderly persons offense conviction, the order of forfeiture of public employment likewise should be expunged. Both the trial court and the Appellate Division concluded that, in the context of a disorderly persons offense, the expungement statute must be read broadly enough to include and also expunge the order of forfeiture of public employment. As a result, the trial court ordered that both the public official’s conviction for a disorderly person offense and the concomitant order of forfeiture of public employment be expunged. The Appellate Division affirmed that judgment.

[10]*10We disagree. Our primary task is to harmonize the provisions of the forfeiture of public employment statute, N.J.S.A. 2C:51-2, with those of the expungement statute, N.J.S.A 2C:52-1 to -82. In so doing, we conclude that the provisions of the expungement statute are not intended to override—that is, expunge—a properly entered order of forfeiture of public employment. Stated differently, we conclude that, in the context of an expungement application and in order to give full expression to the Legislature’s will, a mandatory order of permanent forfeiture of public employment must be severed from—and preserved from the expungement of— the conviction that originally triggered the order of forfeiture. We therefore affirm so much of the judgment of the Appellate Division that upheld the entry of an expungement order, but reverse that part of the judgment of the Appellate Division that extended the reach of that order to include the order of forfeiture of public employment under appeal, which order of forfeiture is reinstated.

I.

Petitioner D.H. was employed as a detective in the Monmouth County Prosecutor’s Office from March 1985 through October 1999. During June 1999, D.H. received a telephone call from an executive at a local employer who asked that D.H. conduct a criminal background check on a prospective employee; D.H. did so, using the Criminal Justice Information System (CJIS), a law enforcement computer system containing, among other things, criminal history records. D.H. well knew she was to make inquiries in CJIS only as part of an active investigation. Although she initially asserted she had her supervisor’s permission to do so, she later conceded she had not confirmed that authority in this instance. In the end, D.H. returned the call to the local employer, advising that the person who was the subject of the inquiry indeed had an arrest record.

On July 1, 1999, D.H. was interviewed by representatives of both the Monmouth County Prosecutor’s Office and the New [11]*11Jersey State Police concerning her unauthorized use of the CJIS. During the interview, D.H. admitted she had conducted CJIS inquiries that were not part of an active criminal investigation, but instead were on behalf of a private employer’s internal investigations of its employees.

On September 28, 1999, D.H. was charged with a summons alleging that she had committed the disorderly persons offense of the purposeful and unauthorized access of a computer, in violation of N.J.S.A. 2C:20-32.1 Pursuant to a plea agreement, on October 5,1999, D.H. pled guilty to that charge and consented to the entry of an order of forfeiture of public employment. Specifically, the trial court inquired of D.H. in respect of the tendered forfeiture order as follows:

Q. And also with this plea, if the Court accepts this plea, there will be a forfeiture of public office, is that correct? Do you understand that?
A. Yes, I understand that.
Q. And do you understand with that, that means any public office, be [it] a schoolteacher, anything that is labeled as being a public office, you will not be able to participate or take that job, you understand that?
A. Yes, Ido.
Q. And [your counsel] has explained that to you as well?
A. Yes, he has.

Before imposing sentence, the trial court explained that, “under [the forfeiture of public employment statute, the imposition of the forfeiture] is not left up to the Court’s discretion. The discretion is either with the Prosecutor or the Attorney General.” As a [12]*12result, the trial court was “duty bound” to enter the order of forfeiture of public employment. The trial court, however, accounted for the effect of the required order of forfeiture of public employment in imposing sentence. Noting that it did “have some discretion with [D.H.’s] sentence^]” the trial court explained that

[a]s I advised you previously, I could impose a sentence of six months [incarceration, a] $1,000 fine, and a period of probation. However, in light of your unblemished past, and your public duty and service that you have rendered, the fact that there is an order of forfeiture that has been signed by [defense counsel] and [the prosecutor] and I affixed my signature to that, which forfeits you having any public employment forever, and disqualifie[s you] from holding any office or position of honor, trust, or profit in the State or any of its administrative or political subdivision[s], I am going to sentence you ... to [a total of $110 in costs and penalties].

For those reasons, the trial court pointedly did not sentence D.H. to any term of incarceration, any term of probation or the imposition of any fines. The contemporaneously entered order of forfeiture of public employment, after reciting that D.H. had consented to the entry of that order, provided that “pursuant to N.J.S.A. 2C:51-2, [D.H.] shall forfeit her public employment and shall be forever disqualified from holding any office or position of honor, trust or profit under the State or any of its administrative or political subdivision^].”

D.H. did not appeal her conviction, sentence or the order of forfeiture of public employment. Instead, on April 12, 2002, D.H. filed a timely petition for post-conviction relief pursuant to it. 3:22-1 to -12, seeking to vacate her guilty plea. That petition was heard by the same trial judge who originally accepted D.H.’s plea on October 5, 1999. In a June 13, 2003 unpublished decision, D.H.’s application for relief was denied. D.H. appealed.

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Bluebook (online)
6 A.3d 421, 204 N.J. 7, 69 A.L.R. 6th 673, 31 I.E.R. Cas. (BNA) 752, 2010 N.J. LEXIS 1128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-expungement-petition-of-dh-nj-2010.