RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A- 1378-23
IN THE MATTER OF THE APPROVED FOR PUBLICATION EXPUNGEMENT OF THE April 13, 2026 CRIMINAL/JUVENILE APPELLATE DIVISION RECORDS OF R.G.C. 1 ____________________________
Argued January 8, 2026 ‒ Decided April 13, 2026
Before Judges Mawla, Marczyk and Bishop- Thompson.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. XP-23- 002199.
Michele E. Friedman, Assistant Deputy Public Defender, argued the cause for appellant R.G.C. (Jennifer N. Sellitti, Public Defender, attorney; Michele E. Friedman, of counsel and on the briefs).
Michael R. Philips, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Mark Musella, Bergen County Prosecutor, attorney; Michael R. Philips, of counsel and on the brief).
The opinion of the court was delivered by
BISHOP-THOMPSON, J.A.D.
1 We use petitioner's initials pursuant to Rule 1:38-3(c)(7). In this appeal of first impression, we must determine the meaning of
"willful noncompliance" in the "clean slate" statute, N.J.S.A. 2C:52-5.3(c),
which permits an expungement of a New Jersey criminal record if ten years
have passed "from the date of the [petitioner's] most recent conviction,"
N.J.S.A. 2C:52-5.3(b), when restitution has not been fully made. The motion
court denied petitioner's second petition for expungement without prejudice
after determining her failure to pay restitution upon release from prison
constituted willful noncompliance. Petitioner contends her application should
have been granted because more than ten years have passed since her release
and her failure to satisfy the restitution obligation was not willful. Absent
competent and credible evidence of petitioner's inability to satisfy her
restitution obligation, we conclude her failure to pay was a deliberate act made
in conscious violation or disregard of the civil judgment, and affirm.
I.
In 2007, petitioner pleaded guilty to second-degree theft by unlawful
taking, N.J.S.A. 2C:20-3(a), and consented to pay restitution to her victims.
Prior to sentencing, an asset investigation revealed petitioner had no assets or
property to make the victims whole. The judgment of conviction ordered
petitioner to pay $278,177.99 in restitution, pursuant to the terms of the
restitution order, which was entered as a civil judgment on June 29, 2007.
A- 1378-23 2 By 2023, more than $266,000 in restitution remained unpaid.
Petitioner's initial application for clean slate expungement was denied on April
6, 2023. On August 17, 2023, petitioner filed a second application for clean
slate expungement. Petitioner argued her failure to comply with the restitution
order was not willful, citing her deportation to Italy in 2017, her subsequent
relocation to Canada, and, as a non-citizen, she received only minimal public
assistance. She further argued significant medical issues—including "absence
seizures, fibrocystic breast disease . . . ovarian cysts, hypertension, type II
diabetes, tympanosclerosis, [e]dema, [post-traumatic stress disorder],
[depressive] disorder[,] and general anxiety disorder"—impeded her ability to
support herself. Petitioner did not submit any documentation to substantiate
her reasons for noncompliance with the civil judgment.
The State objected to the petition, seeking payment of petitioner's
outstanding restitution obligation. It contended petitioner paid restitution only
through mandatory inmate payments and garnished tax refunds collected
during her incarceration. However, after her release from prison in 2010,
petitioner made no further payments.
On December 12, 2023, the motion court denied the petition for
expungement without prejudice, finding petitioner had not met her burden to
prove eligibility pursuant to In re Kollman, 210 N.J. 557 (2012). Referencing
A- 1378-23 3 N.J.S.A. 2C:52-5.3(b), the order stated, "[petitioner] failed to establish that her
non-payment was due to reasons other than willful non[]compliance." The
court reasoned:
In fact, this [c]ourt finds that this [petitioner] took those monies by means of deceptive business practices for which she previously pled guilty. This [c]ourt finds that the [petitioner] at one point had control over and access to all those monies. Thus, she has had every opportunity to repay that restitution in full many years ago. Her alleged disabilities or diminished ability to work presently are irrelevant. This [c]ourt finds that [petitioner]'s non-payment of restitution is willful non[]compliance.
The court further stated: "Based upon its findings, this [c]ourt will not grant
any new expungement applications by this [petitioner] for similar relief unless
all restitution is paid in full and until after the statutory waiting period of ten
years has lapsed."
II.
On appeal, petitioner argues the motion court abused its discretion by
finding she willfully "refused" to pay restitution. She asserts the pre -sentence
investigation revealed her inability to pay restitution as represented by the
State at sentencing, resulting in the entry of the civil judgment. Lastly,
petitioner contends the court failed to properly consider her inability to work
and receipt of public assistance.
A- 1378-23 4 III.
Generally, we review the denial of expungement for an abuse of
discretion. Kollman, 210 N.J. at 577. "Under that standard, a reviewing court
should not substitute its judgment if the trial court's ruling was within 'a range
of acceptable decisions.'" Ibid. (quoting Parish v. Parish, 412 N.J. Super. 39,
73 (App. Div. 2010)).
Our review of statutory interpretation is "de novo, unconstrained by
deference to the decisions of the trial court." In re Expungement Application
of K.M.G., 477 N.J. Super. 167, 173 (App. Div. 2023) (quoting State v. Grate,
220 N.J. 317, 329 (2015)). Also, the trial court's interpretation of the
expungement statute is reviewed de novo. N.J. Div. of Child Prot. &
Permanency v. A.P., 258 N.J. 266, 278 (2024).
N.J.S.A. 2C:52-1 to -32.1 governs expungement and these provisions
were intended by the Legislature "to establish a comprehensive statutory
scheme for the expungement of criminal records" and create "an equitable
system of expungement of indictable and nonindictable offenses as well as of
arrest records." State v. Gomes, 253 N.J. 6, 21 (2023) (quoting State v.
T.P.M., 189 N.J. Super. 360, 364 (App. Div. 1983)) (internal quotation marks
omitted). In essence, our expungement laws are remedial in nature, intended
to provide "relief to the reformed offender" and minimize the collateral
A- 1378-23 5 consequences of criminal convictions. Id. at 21-22; see also K.M.G., 477 N.J.
Super. at 176.
In 2019, the Legislature amended the expungement laws and included
the clean slate provision under N.J.S.A. 2C:52-5.3. This legislative measure
was intended to expand access to expungement and is designed to be inclusive,
not exclusive, thereby offering relief to persons who might otherwise be
ineligible for expungement. See K.M.G., 477 N.J. Super. at 175-76.
N.J.S.A. 2C:52-5.3(b) sets forth the parameters for clean slate
expungement, and provides the petitioner "may present the expungement
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RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A- 1378-23
IN THE MATTER OF THE APPROVED FOR PUBLICATION EXPUNGEMENT OF THE April 13, 2026 CRIMINAL/JUVENILE APPELLATE DIVISION RECORDS OF R.G.C. 1 ____________________________
Argued January 8, 2026 ‒ Decided April 13, 2026
Before Judges Mawla, Marczyk and Bishop- Thompson.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. XP-23- 002199.
Michele E. Friedman, Assistant Deputy Public Defender, argued the cause for appellant R.G.C. (Jennifer N. Sellitti, Public Defender, attorney; Michele E. Friedman, of counsel and on the briefs).
Michael R. Philips, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Mark Musella, Bergen County Prosecutor, attorney; Michael R. Philips, of counsel and on the brief).
The opinion of the court was delivered by
BISHOP-THOMPSON, J.A.D.
1 We use petitioner's initials pursuant to Rule 1:38-3(c)(7). In this appeal of first impression, we must determine the meaning of
"willful noncompliance" in the "clean slate" statute, N.J.S.A. 2C:52-5.3(c),
which permits an expungement of a New Jersey criminal record if ten years
have passed "from the date of the [petitioner's] most recent conviction,"
N.J.S.A. 2C:52-5.3(b), when restitution has not been fully made. The motion
court denied petitioner's second petition for expungement without prejudice
after determining her failure to pay restitution upon release from prison
constituted willful noncompliance. Petitioner contends her application should
have been granted because more than ten years have passed since her release
and her failure to satisfy the restitution obligation was not willful. Absent
competent and credible evidence of petitioner's inability to satisfy her
restitution obligation, we conclude her failure to pay was a deliberate act made
in conscious violation or disregard of the civil judgment, and affirm.
I.
In 2007, petitioner pleaded guilty to second-degree theft by unlawful
taking, N.J.S.A. 2C:20-3(a), and consented to pay restitution to her victims.
Prior to sentencing, an asset investigation revealed petitioner had no assets or
property to make the victims whole. The judgment of conviction ordered
petitioner to pay $278,177.99 in restitution, pursuant to the terms of the
restitution order, which was entered as a civil judgment on June 29, 2007.
A- 1378-23 2 By 2023, more than $266,000 in restitution remained unpaid.
Petitioner's initial application for clean slate expungement was denied on April
6, 2023. On August 17, 2023, petitioner filed a second application for clean
slate expungement. Petitioner argued her failure to comply with the restitution
order was not willful, citing her deportation to Italy in 2017, her subsequent
relocation to Canada, and, as a non-citizen, she received only minimal public
assistance. She further argued significant medical issues—including "absence
seizures, fibrocystic breast disease . . . ovarian cysts, hypertension, type II
diabetes, tympanosclerosis, [e]dema, [post-traumatic stress disorder],
[depressive] disorder[,] and general anxiety disorder"—impeded her ability to
support herself. Petitioner did not submit any documentation to substantiate
her reasons for noncompliance with the civil judgment.
The State objected to the petition, seeking payment of petitioner's
outstanding restitution obligation. It contended petitioner paid restitution only
through mandatory inmate payments and garnished tax refunds collected
during her incarceration. However, after her release from prison in 2010,
petitioner made no further payments.
On December 12, 2023, the motion court denied the petition for
expungement without prejudice, finding petitioner had not met her burden to
prove eligibility pursuant to In re Kollman, 210 N.J. 557 (2012). Referencing
A- 1378-23 3 N.J.S.A. 2C:52-5.3(b), the order stated, "[petitioner] failed to establish that her
non-payment was due to reasons other than willful non[]compliance." The
court reasoned:
In fact, this [c]ourt finds that this [petitioner] took those monies by means of deceptive business practices for which she previously pled guilty. This [c]ourt finds that the [petitioner] at one point had control over and access to all those monies. Thus, she has had every opportunity to repay that restitution in full many years ago. Her alleged disabilities or diminished ability to work presently are irrelevant. This [c]ourt finds that [petitioner]'s non-payment of restitution is willful non[]compliance.
The court further stated: "Based upon its findings, this [c]ourt will not grant
any new expungement applications by this [petitioner] for similar relief unless
all restitution is paid in full and until after the statutory waiting period of ten
years has lapsed."
II.
On appeal, petitioner argues the motion court abused its discretion by
finding she willfully "refused" to pay restitution. She asserts the pre -sentence
investigation revealed her inability to pay restitution as represented by the
State at sentencing, resulting in the entry of the civil judgment. Lastly,
petitioner contends the court failed to properly consider her inability to work
and receipt of public assistance.
A- 1378-23 4 III.
Generally, we review the denial of expungement for an abuse of
discretion. Kollman, 210 N.J. at 577. "Under that standard, a reviewing court
should not substitute its judgment if the trial court's ruling was within 'a range
of acceptable decisions.'" Ibid. (quoting Parish v. Parish, 412 N.J. Super. 39,
73 (App. Div. 2010)).
Our review of statutory interpretation is "de novo, unconstrained by
deference to the decisions of the trial court." In re Expungement Application
of K.M.G., 477 N.J. Super. 167, 173 (App. Div. 2023) (quoting State v. Grate,
220 N.J. 317, 329 (2015)). Also, the trial court's interpretation of the
expungement statute is reviewed de novo. N.J. Div. of Child Prot. &
Permanency v. A.P., 258 N.J. 266, 278 (2024).
N.J.S.A. 2C:52-1 to -32.1 governs expungement and these provisions
were intended by the Legislature "to establish a comprehensive statutory
scheme for the expungement of criminal records" and create "an equitable
system of expungement of indictable and nonindictable offenses as well as of
arrest records." State v. Gomes, 253 N.J. 6, 21 (2023) (quoting State v.
T.P.M., 189 N.J. Super. 360, 364 (App. Div. 1983)) (internal quotation marks
omitted). In essence, our expungement laws are remedial in nature, intended
to provide "relief to the reformed offender" and minimize the collateral
A- 1378-23 5 consequences of criminal convictions. Id. at 21-22; see also K.M.G., 477 N.J.
Super. at 176.
In 2019, the Legislature amended the expungement laws and included
the clean slate provision under N.J.S.A. 2C:52-5.3. This legislative measure
was intended to expand access to expungement and is designed to be inclusive,
not exclusive, thereby offering relief to persons who might otherwise be
ineligible for expungement. See K.M.G., 477 N.J. Super. at 175-76.
N.J.S.A. 2C:52-5.3(b) sets forth the parameters for clean slate
expungement, and provides the petitioner "may present the expungement
application after the expiration of a period of ten years from the date of the . . .
most recent conviction, payment of any court-ordered financial assessment,
satisfactory completion of probation or parole, or release from incarceration,
whichever is later." This paragraph defines "court-ordered financial
assessment" as "any fine, fee, penalty, restitution, and other form of financial
assessment imposed by the court as part of the sentence for the conviction or
convictions that are the subject of the application."
In this context, where a petitioner has not fully satisfied such financial
assessments, N.J.S.A. 2C:52-5.3(c) permits the granting of expungement
provided the ten-year requirement is met and the petitioner demonstrates, by a
preponderance of the evidence, their failure to pay was "due to reasons other
A- 1378-23 6 than willful noncompliance." Simply put, the statute allows for expungement
of the conviction if the court finds there is no willful noncompliance and the
ten-year time requirement is otherwise satisfied. However, at the time of
expungement, a petitioner's obligation to pay is entered as a civil judgment.
N.J.S.A. 2C:52-14 further requires a court to deny expungement if: any
statutory prerequisite remains unsatisfied, including applications sought under
the clean slate provision; there is any other statutory ground for denial; or
public need outweighs the benefits of expungement. See In re Expungement
Petition of D.H., 204 N.J. 7, 18-20 (2010).
A petitioner bears the initial burden of demonstrating eligibility by a
preponderance of the evidence. Id. at 18. Once this burden is met, it "shifts to
the State to 'demonstrate[] by a preponderance of the evidence that there is a
statutory bar or that the petition should not be granted.'" Ibid. (alteration in
original) (quoting In re Expungement Application of G.R., 395 N.J. Super.
428, 431 (App. Div. 2007)).
It is undisputed petitioner has satisfied the ten-year time requirement to
be eligible for expungement under N.J.S.A. 2C:52-5.3(b). However,
petitioner's substantial restitution obligation remains outstanding.
Thus, we consider whether petitioner has met her burden of proving her
failure to pay restitution was not willful under N.J.S.A. 2C:52-5.3(c). While
A- 1378-23 7 Kollman predates the clean slate expungement statute and is not directly
controlling as to the construction of N.J.S.A. 2C:52-5.3, it remains instructive
in several respects. 210 N.J. 557. Specifically, Kollman elucidates the general
burden-shifting framework in expungement proceedings, underscores the
necessity for petitioners to present competent and credible evidence, and
reinforces the principle expungement statutes are not intended to provide relief
in the absence of genuine rehabilitation and compliance with statutory
standards. Id. at 570-74.
The clean slate expungement is a relatively new remedy, and the term
"willful noncompliance" is not defined in the statute. Moreover, the
provisions do not define "willful," but our Supreme Court has interpreted the
term in other contexts; namely, contempt sanctions, where the Court defined
"willful" as conduct that is "deliberate, voluntary, or intentional, but not
necessarily malicious." State v. Moran, 202 N.J. 311, 323 (2010) (citations
and internal quotation marks omitted).
Willful noncompliance entails a deliberate or intentional act in which the
individual can choose their course of conduct. In the context of family matters
and Rule 1:10-3 hearings, a key factor is whether the individual had the ability
to comply with the court order but chose not to. Pasqua v. Council, 186 N.J.
127, 140-41 (2006). In Milne v. Goldenberg, we affirmed the trial court's
A- 1378-23 8 finding of willful noncompliance where a party "had 'a significant amount of
money . . . [at] her disposal, while she was not complying with [certain] court
orders'" and had "intentionally 'prioritize[d]' her funds and ignored the
obligation." 428 N.J. Super. 184, 199 (App. Div. 2012). We have held the
objective of a compliance hearing "is simply to determine whether that failure
was excusable or willful"; in other words, whether "the obligor was able to pay
and did not." Schochet v. Schochet, 435 N.J. Super. 542, 548 (App. Div.
2014).
The record demonstrates petitioner's only payments toward restitution
were garnishments collected during her period of incarceration. Petitioner
presented no competent evidence to demonstrate her inability to pay during the
seven years she remained in the United States following her release, nor during
her time residing in Italy and Canada. Similarly, her claims of hardship,
medical issues, and reliance on public assistance are unsupported by any
competent and credible evidence in the record.
The determination of whether a petitioner is unable to pay full restitution
is a fact-sensitive analysis, requiring the careful consideration of all competent
and credible evidence presented by the parties. Unsupported assertions of
hardship or indigency—without documentation or affidavits—are insufficient
to rebut a finding of willfulness. See R. 1:6-6; N.J.S.A. 2C:52-8; see also
A- 1378-23 9 Kollman, 210 N.J. at 572-74. Absent such credible and competent evidence
demonstrating an inability to pay, petitioner's assertion the failure to satisfy
restitution was "nonwillful" fails. Accordingly, we hold petitioner's failure to
satisfy restitution following her release from prison was willful—a deliberate
act in conscious violation or disregard of the judgment. See Callahan v. Tri-
Borough Sand & Stone, 478 N.J. Super. 505, 514 (App. Div. 2024).
We conclude the motion court properly exercised its discretion in ruling
petitioner failed to establish by a preponderance of the evidence her inability
to satisfy the judgment was not willful. The court's finding of willful
noncompliance is supported by both the record and the governing law. See
Balducci v. Cige, 240 N.J. 574, 595 (2020); Gnall v. Gnall, 222 N.J. 414, 428
(2015).
To the extent we have not addressed any of petitioner's remaining
arguments, we are satisfied they lack sufficient merit to warrant discussion. R.
2:11-3(e)(2).
Affirmed.
A- 1378-23 10