RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1416-21
IN THE MATTER OF THE EXPUNGEMENT OF CRIMINAL/JUVENILE RECORDS OF F.S.1 __________________________
Submitted July 19, 2022 – Decided August 19, 2022
Before Judges Sabatino and Mayer.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. 21-000147.
Camelia M. Valdes, Passaic County Prosecutor, attorney for appellant State of New Jersey (Leandra L. Cilindrello, Assistant Prosecutor, on the brief).
Katherine O'Brien Law, attorneys for respondent F.S. (Katherine N. O'Brien and Danielle M. Hughes, on the brief).
PER CURIAM
1 We use initials to refer to respondent because the non-revelation of his identity as a person with a criminal record is the subject matter of his expungement application and this appeal. N.J.S.A. 2C:52-15 (prohibiting, subject to certain enumerated exceptions, the disclosure of information contained within expunged criminal and juvenile records). The State appeals the trial court's December 15, 2021 grant of the petition
of respondent F.S., a former municipal police officer, to expunge his criminal
record over the State's objection. 2 The trial court's decision hinged upon its
determination that F.S.'s criminal conviction of aggravated assault in 2014 did
not "touch and involve" his employment as a police officer. See N.J.S.A. 2C:51-
2(a)(1) to (3). We disagree with that legal determination of a lack of nexus, and
accordingly reverse.
In accordance with the Supreme Court's guidance in State v. Hupka, 203
N.J. 222, 239-41 (2010), we describe the record in a manner confined to facts
that are either within the "four corners" of F.S.'s guilty plea allocution, or which
he has admitted or are otherwise uncontested.3
Succinctly stated, the facts concern a confrontation between F.S. and two
civilians that occurred on November 14, 2010. At about 6:15 p.m. that evening,
F.S. received a telephone call from his minor son. The son told F.S. that he had
just been attacked by two men while riding his bicycle near a drug store in the
2 The trial court's written order memorializing its December 15, 2021 oral decision was issued on December 27, 2021. 3 In keeping with these constraints, we do not consider the State's contention in its brief that F.S. displayed a gun at the scene of the incident. At sentencing, the trial court granted F.S.'s request, without objection by the State, to strike the references in the presentence report indicating that a gun had been involved. A-1416-21 2 town where F.S. and his family resided. At the time he received his son's call,
F.S. was a police officer employed by a nearby municipality, and was off duty.
The son described the two men to F.S.
In response to the call, F.S. and his wife quickly went to their son's
location and found him lying injured on the sidewalk. According to F.S., an
eyewitness who had seen the altercation told him that a White male and a Black
male had ran on foot from the scene. F.S.'s wife called the local police
department and stayed with the son. Meanwhile, as F.S. put it in his official
report, he "went on foot to search for the suspects."
What happened next is the critical part of the narrative. As F.S. recounted
in his report:
I arrived a block away and I spotted two individuals who matched the description as the suspects. I immediately identified myself as a police officer, displayed my identification and badge from my wallet. At this time the W/M [White male] complied to [sic] my orders and immediately layed [sic] on the ground. The B/M [Black male] however did attempt to flee and had to be brought down to the ground and held until arrival of a [name of town omitted] police unit. Once the unit arrived on scene, and took over the investigation, I responded to the [name of hospital and town omitted] where my son was transported for his injuries.
[(Emphasis added).]
A-1416-21 3 The two men who F.S. apprehended were arrested. The Black male told
investigators in a sworn statement that F.S. had struck him at the scene
repeatedly with his fist, injuring him.
Thereafter, the State criminally charged F.S. with second-degree official
misconduct, N.J.S.A. 2C:30-2(a) (count one); second-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(1) (alleging serious bodily injury) (count two); and third-
degree aggravated assault, N.J.S.A. 2C:12-1(b)(7) (alleging significant bodily
injury) (count three).
Plea negotiations ensued and F.S. agreed to plead guilty to the third count
of the indictment, third-degree aggravated assault. The other counts were
dismissed. As part of the plea agreement, F.S. agreed to resign from his
employment as a police officer. However, the plea agreement did not contain
an agreement by F.S. to forfeit any future employment in a law enforcement
position. The State agreed to recommend a probationary sentence.
At the plea proceeding, F.S. acknowledged during his colloquy that he had
mistakenly believed that the Black male had assaulted his son. F.S. further
admitted that he had struck the Black male "with [his] fist about [the victim's]
face and head area." F.S. further admitted that as a result of his actions, he had
inflicted "significant bodily injury" upon the victim.
A-1416-21 4 Consistent with the terms of the plea agreement, the trial court sentenced
F.S. in August 2014 to a probationary term of eighteen months. It is undisputed
that F.S. completed his probationary sentence, and, as agreed, voluntarily
resigned from the police force.
In February 2021, F.S. filed a petition in the Criminal Part seeking the
expungement of his criminal records pursuant to N.J.S.A. 2C:52-7. The State
objected to the expungement application. It argued that F.S.'s aggravated assault
upon the victim, under the circumstances presented, amounted to a criminal act
that "touched and concerned" his occupation as a police officer, thereby making
it ineligible for expungement under N.J.S.A. 2C:52-2(b).
After hearing oral argument, the trial court granted F.S.'s petition on
December 15, 2021. In its oral ruling, the court concluded that the aggravated
assault did not touch or concern F.S.'s employment as a police officer. As the
events were construed by the trial court, F.S. "took off in pursuit . . . as a father
concerned about the well-being of his child."
The court acknowledged that F.S. admittedly had identified himself as a
police officer, but did so "in order to be able to hold the two individuals whom
he mistakenly took to be the offenders against his son." The court noted that
F.S. did not go to the scene armed or with handcuffs. It construed the events as
A-1416-21 5 F.S. "in effect engaging in a citizen's arrest." The court found that F.S. showed
his police badge in order "to persuade them [the two suspects] to stay," and that
"there wasn't any more formality to it . . . [.]"
The State now appeals the expungement of F.S.'s conviction, contending
the trial court erred in concluding that the conviction did not touch and concern
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RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1416-21
IN THE MATTER OF THE EXPUNGEMENT OF CRIMINAL/JUVENILE RECORDS OF F.S.1 __________________________
Submitted July 19, 2022 – Decided August 19, 2022
Before Judges Sabatino and Mayer.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. 21-000147.
Camelia M. Valdes, Passaic County Prosecutor, attorney for appellant State of New Jersey (Leandra L. Cilindrello, Assistant Prosecutor, on the brief).
Katherine O'Brien Law, attorneys for respondent F.S. (Katherine N. O'Brien and Danielle M. Hughes, on the brief).
PER CURIAM
1 We use initials to refer to respondent because the non-revelation of his identity as a person with a criminal record is the subject matter of his expungement application and this appeal. N.J.S.A. 2C:52-15 (prohibiting, subject to certain enumerated exceptions, the disclosure of information contained within expunged criminal and juvenile records). The State appeals the trial court's December 15, 2021 grant of the petition
of respondent F.S., a former municipal police officer, to expunge his criminal
record over the State's objection. 2 The trial court's decision hinged upon its
determination that F.S.'s criminal conviction of aggravated assault in 2014 did
not "touch and involve" his employment as a police officer. See N.J.S.A. 2C:51-
2(a)(1) to (3). We disagree with that legal determination of a lack of nexus, and
accordingly reverse.
In accordance with the Supreme Court's guidance in State v. Hupka, 203
N.J. 222, 239-41 (2010), we describe the record in a manner confined to facts
that are either within the "four corners" of F.S.'s guilty plea allocution, or which
he has admitted or are otherwise uncontested.3
Succinctly stated, the facts concern a confrontation between F.S. and two
civilians that occurred on November 14, 2010. At about 6:15 p.m. that evening,
F.S. received a telephone call from his minor son. The son told F.S. that he had
just been attacked by two men while riding his bicycle near a drug store in the
2 The trial court's written order memorializing its December 15, 2021 oral decision was issued on December 27, 2021. 3 In keeping with these constraints, we do not consider the State's contention in its brief that F.S. displayed a gun at the scene of the incident. At sentencing, the trial court granted F.S.'s request, without objection by the State, to strike the references in the presentence report indicating that a gun had been involved. A-1416-21 2 town where F.S. and his family resided. At the time he received his son's call,
F.S. was a police officer employed by a nearby municipality, and was off duty.
The son described the two men to F.S.
In response to the call, F.S. and his wife quickly went to their son's
location and found him lying injured on the sidewalk. According to F.S., an
eyewitness who had seen the altercation told him that a White male and a Black
male had ran on foot from the scene. F.S.'s wife called the local police
department and stayed with the son. Meanwhile, as F.S. put it in his official
report, he "went on foot to search for the suspects."
What happened next is the critical part of the narrative. As F.S. recounted
in his report:
I arrived a block away and I spotted two individuals who matched the description as the suspects. I immediately identified myself as a police officer, displayed my identification and badge from my wallet. At this time the W/M [White male] complied to [sic] my orders and immediately layed [sic] on the ground. The B/M [Black male] however did attempt to flee and had to be brought down to the ground and held until arrival of a [name of town omitted] police unit. Once the unit arrived on scene, and took over the investigation, I responded to the [name of hospital and town omitted] where my son was transported for his injuries.
[(Emphasis added).]
A-1416-21 3 The two men who F.S. apprehended were arrested. The Black male told
investigators in a sworn statement that F.S. had struck him at the scene
repeatedly with his fist, injuring him.
Thereafter, the State criminally charged F.S. with second-degree official
misconduct, N.J.S.A. 2C:30-2(a) (count one); second-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(1) (alleging serious bodily injury) (count two); and third-
degree aggravated assault, N.J.S.A. 2C:12-1(b)(7) (alleging significant bodily
injury) (count three).
Plea negotiations ensued and F.S. agreed to plead guilty to the third count
of the indictment, third-degree aggravated assault. The other counts were
dismissed. As part of the plea agreement, F.S. agreed to resign from his
employment as a police officer. However, the plea agreement did not contain
an agreement by F.S. to forfeit any future employment in a law enforcement
position. The State agreed to recommend a probationary sentence.
At the plea proceeding, F.S. acknowledged during his colloquy that he had
mistakenly believed that the Black male had assaulted his son. F.S. further
admitted that he had struck the Black male "with [his] fist about [the victim's]
face and head area." F.S. further admitted that as a result of his actions, he had
inflicted "significant bodily injury" upon the victim.
A-1416-21 4 Consistent with the terms of the plea agreement, the trial court sentenced
F.S. in August 2014 to a probationary term of eighteen months. It is undisputed
that F.S. completed his probationary sentence, and, as agreed, voluntarily
resigned from the police force.
In February 2021, F.S. filed a petition in the Criminal Part seeking the
expungement of his criminal records pursuant to N.J.S.A. 2C:52-7. The State
objected to the expungement application. It argued that F.S.'s aggravated assault
upon the victim, under the circumstances presented, amounted to a criminal act
that "touched and concerned" his occupation as a police officer, thereby making
it ineligible for expungement under N.J.S.A. 2C:52-2(b).
After hearing oral argument, the trial court granted F.S.'s petition on
December 15, 2021. In its oral ruling, the court concluded that the aggravated
assault did not touch or concern F.S.'s employment as a police officer. As the
events were construed by the trial court, F.S. "took off in pursuit . . . as a father
concerned about the well-being of his child."
The court acknowledged that F.S. admittedly had identified himself as a
police officer, but did so "in order to be able to hold the two individuals whom
he mistakenly took to be the offenders against his son." The court noted that
F.S. did not go to the scene armed or with handcuffs. It construed the events as
A-1416-21 5 F.S. "in effect engaging in a citizen's arrest." The court found that F.S. showed
his police badge in order "to persuade them [the two suspects] to stay," and that
"there wasn't any more formality to it . . . [.]"
The State now appeals the expungement of F.S.'s conviction, contending
the trial court erred in concluding that the conviction did not touch and concern
his employment as a police officer. Applying de novo review to that legal
conclusion, Hupka, 203 N.J. at 231, we concur with the State's position and
reverse.
The key statutory provision here, N.J.S.A. 2C:52-2(b), prohibits
expungement of a conviction for "any crime committed by a person holding any
public office, position or employment . . . if the crime involved or touched such
office, position or employment." (emphasis added). A related provision within
N.J.S.A. 2C:51-2(d) under the forfeiture statutes forever disqualifies a public
official from "holding any office or position of honor, trust or profit" within
government if that person has been convicted of an offense "involving or
touching on his public office[.]" N.J.S.A. 2C:51-2(d). As used in that related
provision in Title 51, the term "involving or touching upon his public office,
position or employment" means "the offense was related directly to the person's
A-1416-21 6 performance in, or circumstances flowing from, the specific public office,
position or employment held by the person." Ibid.
This "touch or involve" concept has been developed in case law. For
example, in McCann v. Clerk of Jersey City, 167 N.J. 311, 320-24 (2001), our
Supreme Court held that a former mayor's guilty plea to federal mail, wire, and
tax fraud violations occurring in the interim between his terms of office did not
sufficiently touch or involve his public duties to justify a permanent forfeiture
disqualifying him from public office. The Court noted the phrase in the statute
implies "a determination on the part of the Legislature to limit the scope of the
disqualification provision to crimes that are related directly to an individual's
performance in, or circumstances flowing from, a specific public office or
position held by that individual." Id. at 321.
Later, in Hupka, 203 N.J. at 222, a 5-2 majority of the justices concluded
that a sheriff's officer who pled guilty to fourth-degree criminal sexual conduct
had not been convicted of an offense touching or involving his public
employment. Among other things, the majority noted that the officer "did not
use his office or its trappings in any way in the commission of the [sexual]
offense." Id. at 243.
A-1416-21 7 The present circumstances are plainly different from McCann and Hupka.
Here, F.S. invoked his authority as a police officer, albeit one who was off duty,
to force the victim and his companion to fall to the ground and not move.
Notably, in his official report F.S. described his commands at the scene as
"orders." He displayed his police badge as a clear show of official authority, to
induce the two men he had apprehended to comply with those orders. He
described the men as "suspects," and he referred to the local police who arrived
as officers who "took over" the "investigation" he had started.
With all due respect to the trial court, the course of conduct engaged in by
F.S. did "touch or involve" his occupation as a police officer because his
apprehension of the two men bears a "direct relationship" to his position as a
police officer. See N.J.S.A. 40A:14-200 (defining a "law enforcement officer"
as one who is "statutorily empowered to act for the detection, investigation,
arrest, . . . detention[] . . . of persons violating the criminal laws of this State and
statutorily required to successfully complete [an approved] training course . . .
.").
F.S.'s response and show of authority exceeded that of an ordinary citizen
or a concerned parent. See, e.g., State v. Williams, 355 N.J. Super. 579, 589-90
(App. Div. 2002) (ordering forfeiture and disqualification for conduct involving
A-1416-21 8 or touching public employment where an off-duty officer flashed his badge and
fired a weapon during a bout of road rage); State v. Gismondi, 353 N.J. Super.
178, 186-89 (App. Div. 2002) (finding that an officer's flashing of his badge and
firing of his service revolver during a period of off-duty drunkenness constituted
an abuse of authority that involved or touched his employment). F.S.'s actions
were that of a police officer, even without a finding that he displayed or fired
his service revolver. The statutory disqualification logically is not limited to
circumstances involving a police officer's use of a weapon.
Because the trial court erred in its legal analysis and its application of the
statutes, we reverse the order granting expungement.
Reversed.
A-1416-21 9