IN THE MATTER OF THE EXPUNGEMENT OF THE CRIMINAL RECORDSOF MICHAEL J. DEROSA(02-11-1500, MERCER COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 26, 2017
• Docket: A-0481-16T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0481-16T2

IN THE MATTER OF THE EXPUNGEMENT OF THE CRIMINAL RECORDS OF MICHAEL J. DEROSA.

_______________________________

Submitted May 25, 2017 - Decided June 26, 2017

Before Judges O'Connor and Mawla.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 02-11-1500.

Michael J. DeRosa, appellant pro se.

Angelo J. Onofri, Mercer County Prosecutor, attorney for respondent State of New Jersey (Amanda E. Nini, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Petitioner Michael J. DeRosa appeals from an October 20, 2016

order denying his application for expungement pursuant to N.J.S.A.

2C:52-2(a)(2). We affirm.

The following facts are taken from the record. In 2002,

petitioner worked in a group home where he was responsible for the care of a severely disabled adult patient. The patient repeatedly

wandered outside of his room. On one occasion, petitioner tied

the patient's wrists above his head and to the bed, where he hung

under the pull of his body weight for over twelve hours, causing

severe nerve damage. The patient also suffered burns when he

slipped from the bed and lay against a nearby heater, unable to

move away because he remained tied. When another worker discovered

the patient the next morning, petitioner denied responsibility for

his actions and refused to obtain medical treatment for the

patient. He also downplayed the patient's injuries as illness-

related, when queried by the patient's mother.

On March 4, 2004, a Mercer County jury convicted petitioner

of criminal restraint.1 He was sentenced to six months of

incarceration, followed by four years of probation, ordered to

perform two hundred and fifty hours of community service and pay

fines and fees totaling $1155. Petitioner served his custodial

sentence, satisfied his monetary and community service

obligations, and was discharged from probation early for good

conduct on July 26, 2007. He subsequently relocated to Florida,

where he resided with his parents and completed his undergraduate

and law degrees. Petitioner was also employed while in school.

1 On appeal, we reversed petitioner's conviction for endangerment.

2 A-0481-16T2 Upon completing law school, he applied for admission to the Florida

and South Carolina Bars. However, both applications were denied

because of petitioner's criminal record.

As a result, petitioner filed an application on May 12, 2016,

seeking to expunge his criminal record, including the following:

a July 9, 2001 municipal charge for simple assault and harassment,

which had been dismissed; the conviction for criminal restraint;

and a February 4, 2006 arrest and guilty plea to a fighting/

misbehaving municipal ordinance, incurred while on probation.

After a hearing, the trial judge denied petitioner's application.

On appeal, petitioner asserts the following arguments:

I. MISAPPLICATION/MISINTERPRETATION OF THE LAW

A. THE TRIAL COURT MISINTERPRETS AND MISAPPLIES THE LAW SET FORTH IN N.J.S.A. 2C:52-26(a)(2) AND THE ACCOMPANYING GUIDELINES SET FORTH BY THE NEW JERSEY SUPREME COURT IN THE CASE IN RE KOLLMAN.

B. THE TRIAL COURT ERR[ED] BY IMPROPERLY MINIMIZING, MISUSING, AND MISCHARACTERIZING THE PETI- TIONER'S SATISFACTORY PERFORMANCE OF COMMUNITY SERVICE AS SELF- SERVING.

C. SATISFACTION OF THE KOLLMAN COURT FACTORS THAT ARE TO BE WEIGHED AND BALANCED NEED ONLY BE SATISFIED TO ORDINARY NOT AN EXCEPTIONAL LEVEL.

3 A-0481-16T2 D. LACK OF COMMUNITY SERVICE IS NOT ONE OF THE DOMINANT KOLLMAN COURT FACTORS NOR IS IT THE BASIS FOR A DENIAL OF EXPUNGEMENT AS LISTED IN N.J.S.A. 2C:52-14. ALTERNATIVELY, PERFORMANCE OF COMMUNITY SERVICE IS ONLY A POSITIVE ENHANCING CONSIDERATION AND THE ABSENCE OF WHICH CANNOT BE VIEWED IN A NEGATIVE LIGHT OR SERVE TO NEGATE OR OVER- WHELM THE EXISTENCE OF THE DOMINANT GUIDING BALANCING FACTORS OF THE KOLLMAN COURT.

II. ABUSE OF DISCRETION AND VIOLATIONS OF DUE PROCESS.

A. THE TRIAL COURT'S RELIANCE ON ITS "SENSE" OF THE PETITIONER'S ACCOUNTABILITY IS MISGUIDED AND ITS FAILURE TO ACKNOWLEDGE AND UTILIZE SEVERAL REPORTS FASHIONED BY INDEPENDENT LICENSED PSYCHOLOGISTS WHEN FORMING THAT OPINION IS INAPPROPRIATE AND AN ABUSE OF DISCRETION.

B. THE TRIAL COURT ABUSES ITS DISCRETION IN REQUIRING AN ADMISSION OF GUILT FROM THE PETITIONER WHICH IS NOT GROUNDS FOR DENIAL OF AN EXPUNGEMENT PETITION UNDER N.J.S.A. 2C:52-14.

C. THE TRIAL COURT VIOLATED THE PETITIONER'S DUE PROCESS RIGHTS IN ALLOWING UNSUBSTANTIATED EVIDENCE NOT FOUND IN THE RECORD TO PROVIDE THE BASIS FOR ITS FACTUAL FINDINGS AND BY NOT REQUIRING THE OBJECTING PARTY TO PROVIDE A REASONABLE BASIS FOR ITS OBJECTIONS.

D. THE TRIAL COURT ERR[ED] BY FAILING TO SHIFT THE BURDEN TO THE

4 A-0481-16T2 STATE TO PRODUCE BY THE PREPOND- ERANCE OF THE EVIDENCE A NEED FOR THE AVAILABILITY OF THE PETITION- ER'S CRIMINAL RECORD.

III. LEGISLATIVE INTENT AND PUBLIC POLICY VIOLATIONS.

A. A DIRECT COMPARISON OF THE KOLLMAN AND PETITIONER'S CASES UNDER THE PUBLIC INTEREST BALANCING EVALUATION DEMONSTRATES THE TRIAL COURT['S] CLEAR AND PLAIN ERROR IN DENYING THE PETITIONER'S PETITION ACCORDING TO THE LEGISLATIVE INTENT AND AS A MATTER OF PUBLIC POLICY.

B. THE TRIAL COURT FAILED TO ADHERE TO THE LEGISLATIVE INTENT OF THE EXPUNGEMENT LAW UNDER N.J.S.A. 2C:52-32 TO PROVIDE RELIEF TO THE REFORMED OFFENDER WHO HAS DISASSO- CIATED FROM UNLAWFUL ACTIVITY.

Relevant to the issues on appeal, petitioner claims the trial

judge improperly weighed the factors set forth in N.J.S.A. 2C:52-

2(a)(2) and misinterpreted the Supreme Court's holding in In re

Kollman, 210 N.J. 557 (2012). Following our review of the

arguments presented in light of the record and applicable law, we

find no abuse of discretion and affirm.

Our review of expungement determinations requires "[w]e

review the [trial] court's balancing of competing factors for

abuse of discretion." Id., supra, 210 N.J. at 577 (citing In re

LoBasso, 423 N.J. Super. 475, 496 (App. Div. 2012)). "Under that

standard, a reviewing court should not substitute its judgment if

5 A-0481-16T2 the trial court's ruling was within 'a range of acceptable

decisions.' However, the trial court's interpretation of the law

is not entitled to special deference. We review legal questions

de novo." Id. at 577-78 (citations omitted).

Pursuant to N.J.S.A. 2C:52-2(a)(2), a court may grant a

petitioner expungement when:

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 essence, expungement under the [] 'public interest' prong

initially requires three things: the passage of five years; no

additional convictions; and a finding that expungement is in the

public interest." Kollman, supra, 210 N.J. at 571. The applicant

bears the burden of proving the factors for expungement. Id. at

572-73.

To determine whether expungement is in the public interest

"courts are to consider and balance the 'nature of the offense'

and the 'applicant's character and conduct since conviction.'"

Ibid. "The 'nature of the offense' encompasses undisputed or

6 A-0481-16T2 proven facts about the crime and its commission. That certainly

includes basic information about the definition, grade, and

elements of an offense." Id. at 574. "[T]herefore, judges may

also consider details about what the petitioner did, how and with

whom he acted, and the harm he may have caused in connection with

the offense of conviction." Id. at 574-75. "In short, courts

examining how the 'nature of the offense' affects the public

interest have wide latitude." Id. at 575.

To determine an applicant's character and conduct since

conviction, "courts may examine an applicant's performance while

in jail or on probation." Id. at 576.

During and after that time, courts may also consider whether an applicant

has engaged in activities that have limited the risk of re-offending, or has avoided activities that enhanced the risk [including] whether a petitioner has obtained job training or education, complied with other legal obligations (such as child support and motor vehicle fines), and maintained family and community ties that promote law- abiding behavior, as well as whether the petitioner has severed relationships with persons in the criminal milieu.

Facts related to an arrest that did not result in conviction, or to a dismissed charge, may also offer insight into an applicant's character and conduct. [In re Lobasso, 423 N.J. Super. 475, 576 (2012).] To assess the

7 A-0481-16T2 public interest . . . courts [may] consider conduct before the time of conviction as well, to gauge whether the offense was aberrational or part of a "pattern of disrespect for the law or a threat to public safety." [Id. at 495.]

. . . .

In practice, trial judges will balance the above factors as they decide whether expungement serves the public interest in a particular case. In doing so, they weigh the risks and benefits to the public of allowing or barring expungement. The focus, as the statute says, is on the "public interest," which is broader than the personal desires of an applicant although the concepts can often be intertwined.

[Id. at 576-77 (emphasis added) (citations omitted).]

Here, because there is no dispute that petitioner met the

first two statutory factors, we address his claims the trial judge

abused her discretion in weighing the third public interest factor.

Petitioner asserts he met the public interest factor because he

volunteered for work while in prison, completed his community

service at a church, overcame a learning disability to earn his

undergraduate and law degrees, and cared for his ailing parents.

He also argues the evidence proves he will not re-offend.

Specifically, he highlights the lack of other criminal

convictions, a character reference letter from his sister, a mental

health evaluation he obtained for purposes of seeking an

8 A-0481-16T2 accommodation to take the Florida Bar Examination, and two letters

from a mental health counselor and a neuropsychologist for

admission to the South Carolina Bar.

Petitioner likens his case to the facts in Kollman and argues

the trial judge here failed to consider evidence of his good

character and conduct since the conviction. Specifically, he

points to his completion of two hundred and fifty hours of

community service as a part of his sentence and "over 120 hours

of pro bono work, while in law school, and one year of volunteer

work done at the Florida State University Public Interest Law

Center." Petitioner also challenges the trial judge's finding he

lacked remorse and accountability for his actions, claiming the

judge ignored his expressions of remorse during his testimony at

the expungement hearing.

Our review of the trial judge's findings lead us to conclude

she did not abuse her discretion. First, the record demonstrates

the judge considered the nature of petitioner's offense and its

gravity. She recited petitioner's criminal history, including his

arrest and guilty plea to a municipal ordinance while on probation.

She also considered and rejected petitioner's assurances he would

not re-offend because he did not intend to return to the health

9 A-0481-16T2 care field again,2 noting there are no conditional expungements

under the statute.

Second, the judge acknowledged the strides petitioner made

in obtaining an education for the stated purpose to "give back."

She further addressed petitioner's pro bono work during law school

and the difficulties a criminal record imposes on the ability to

obtain employment. However, the judge noted petitioner's

education materially benefitted him and his family, not the public

interest.

This finding dovetailed with the judge's finding petitioner

lacked remorse. The judge traced a common theme, beginning with

the presentencing report, which noted his intent to appeal the

conviction. The judge interpreted this as an "air of, I'm sorry

for what happened but [I am] not taking responsibility for what

happened." The judge found the arguments raised in the expungement

petition bore the same "air," noting petitioner continued to

deflect responsibility by arguing a lack of evidence to support

the conviction. The judge found this demonstrated a lack of

remorse. Referring to the facts underlying his conviction for

2 We note, notwithstanding petitioner's assurance to remain out of the health care field, his intent to become an attorney at law will, by necessity, expose him to a similarly situated subset of vulnerable individuals, whether it be through pro bono service or in the representation of clientele enduring difficult circumstances.

10 A-0481-16T2 criminal restraint, she stated: "And when you say there's no

evidence for 12 hours, you don't remember that. Well it's in the

Appellate Division's decision because they talk about the evidence

that was presented at trial."

Having considered petitioner's claims on this record, we are

unable to conclude the judge abused her discretion in weighing the

statutory factors. The record supports the judge's findings

petitioner's conviction was not, as the Kollman Court stated,

merely "a minor brush with the criminal justice system." Kollman,

supra, 210 N.J. at 568. The gravity of petitioner's offense, his

disruptive conduct during probation, and his attitude demonstrate

otherwise.

Lastly, the trial judge properly exercised her discretion in

weighing evidence purporting to corroborate petitioner's character

and conduct since his conviction. As she noted, the mental health

evaluations attached in support of petitioner's expungement

application do not address his conduct, insight and remorse over

his past conduct. Instead, the documents address petitioner's

mental health condition in connection with a separate assault he

suffered, a request for clemency, and a request for a testing

accommodation for the Florida and South Carolina Bar examinations.

These materials are irrelevant to an evaluation of his character

and conduct as they relate to his conviction. Moreover, a review

11 A-0481-16T2 of the sentencing and expungement hearing transcripts demonstrate

the gravamen of petitioner's testimony was not to express remorse

to the victim and his family, but instead remorse over the impact

petitioner's wrongdoing has had on himself, his family, and his

future.

On the matter of character and conduct, petitioner likens his

circumstances to those in Kollman, but we fail to see any analogy.

Indeed, the Kollman Court noted:

Kollman offered proof that he completed college and received a Bachelor of Science degree from the Richard Stockton College of New Jersey in May 2009. He also certified that he worked full-time while in school and had become active in various community service projects.

Petitioner also submitted twenty-one letters to the court. His employer for sixteen years described him as a hard-working leader and a role model to others. The employer credited Kollman for accepting responsibility and taking steps to improve himself and deter others after his conviction. The District Director for the Boy Scouts of America praised Kollman and his family for hosting annual toy drives to help underprivileged families and teenagers with alcohol and drug abuse problems. Kollman also served on the district board of directors of a scholarship committee for scouting. Several other community groups submitted letters as well. In addition, various attorneys, friends, and family members wrote about Kollman's strong character and personal growth in recent years.

In Kollman's certification, he added that he had had no trouble with the law since his

12 A-0481-16T2 conviction -- not even a speeding ticket. However, he explained that because of his criminal record, he could not teach a boating and safety certificate class, as he had done previously for three to four years, could not help coach wrestling at high school, as he had done before as well, and could not accept an offer to work with the Big Brothers Big Sisters program as a volunteer.

[Id. at 564-65.]

Although we do not require every applicant seeking

expungement to replicate the exact facts in Kollman, the facts

here are inapposite to those in Kollman, where the petitioner's

post-conviction character and conduct exuded a singular aim of

service to others. Petitioner's conduct falls short of the mark,

and is not outweighed by his limited pro bono employment during

law school. Instead it demonstrates, as the Kollman Court stated,

a motivation to serve his narrower "personal desires." The balance

of petitioner's arguments are without sufficient merit to warrant

a discussion in a written opinion. Rule 2:11-3(e)(1)(E).

Affirmed.

13 A-0481-16T2