State v. NW

747 A.2d 819, 329 N.J. Super. 326
CourtNew Jersey Superior Court Appellate Division
DecidedMarch 29, 2000
StatusPublished

This text of 747 A.2d 819 (State v. NW) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. NW, 747 A.2d 819, 329 N.J. Super. 326 (N.J. Ct. App. 2000).

Opinion

747 A.2d 819 (2000)
329 N.J. Super. 326

STATE of New Jersey, Respondent,
v.
N.W., Appellant.

Superior Court of New Jersey, Appellate Division.

Submitted January 5, 2000.
Decided March 29, 2000.

*820 Giordano, Halleran & Ciesla, Middletown, for appellant (Edward C. Bertucio, Jr., of counsel; Michael R. Hobbie, on the brief).

John Kaye, Monmouth County Prosecutor, for respondent (Paul J. Feldman, Assistant Prosecutor, of counsel and on the brief).

Before Judges BAIME, BROCHIN and EICHEN.

The opinion of the court was delivered by EICHEN, J.A.D.

This is an appeal from an order of the Law Division denying N.W.'s (petitioner) petition to expunge the record of a criminal conviction entered on July 9, 1976 for "carnal abuse" under repealed statute N.J.S.A. 2A:138-1. The order was entered pursuant N.J.S.A. 2C:52-1 to -32 (the expungement statute). Petitioner applied for expungement of the conviction under N.J.S.A. 2C:52-2b, arguing that because the Legislature did not include the crime of "carnal abuse" in the list of ineligible crimes in that section of the statute, its intent was to allow its expungement. The Law Division judge disagreed and denied his petition. We reverse.

The facts are simple and uncontroverted. On October 3, 1975, petitioner was charged on Indictment 64-75 with the following crimes: Count one charged that on January 8, 1975, petitioner "did forcibly against the will of S.W. ravish and carnally know her"; count two charged that petitioner "unlawfully and carnally abuse[d] S.W." Petitioner pleaded not guilty to both counts. On April 26, 1976, petitioner withdrew his not guilty plea to count two and entered a plea of guilty to carnal abuse.[1] Thereafter, the State dismissed count one. The judge sentenced petitioner to serve an indeterminate term at the Youth Correctional Institutional Complex, waiving "the five year maximum" sentence and imposing a "ten year maximum" sentence. The judge immediately suspended the sentence and placed petitioner on probation for a period of two years. Petitioner was twenty-two years old at the time the crime was committed. The victim was fifteen years old.

On September 29, 1998, petitioner filed a verified petition for expungement of his conviction for "carnal abuse."

N.J.S.A. 2C:52-2a sets forth the general rule governing expungement of crimes in this State as follows:

In all cases, except as herein provided, wherein a person has been convicted of a crime under the laws of this State and who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, and has not been adjudged a disorderly person or petty disorderly person on more than two occasions may after the expiration of a period of 10 years from the date of his conviction ... present a duly verified petition ... praying that such conviction and all records and information pertaining thereto be expunged.
[N.J.S.A. 2C:52-2a.]

N.J.S.A. 2C:52-2b contains exceptions to the general rule, listing the crimes which are not eligible for expungement. See Application *821 of R.C., 292 N.J.Super. 151, 153, 678 A.2d 339 (Law Div.1996). That section consists of two unnumbered paragraphs. The first paragraph contains a list of ineligible pre-Code crimes, while the second paragraph contains ineligible Code[2] offenses.

N.J.S.A. 2C:52-2b provides in relevant part as follows:

Records of conviction pursuant to statutes repealed by this Code for the crimes of murder, manslaughter, treason, anarchy, kidnapping, rape, forcible sodomy, arson, perjury, false swearing, robbery, embracery, or a conspiracy or an attempt to commit any of the foregoing, or aiding, assisting or concealing persons accused of the foregoing crimes, shall not be expunged.
Records of conviction for the following crimes specified in the New Jersey Code of Criminal Justice shall not be subject to expungement: ... [S]ection 2C:14-2 (Aggravated Sexual Assault); section 2C:14-3a (Aggravated Criminal Sexual Contact); if the victim is a minor, section 2C:14-3b (Criminal Sexual Contact); if the victim is a minor and the offender is not the parent of the victim, section 2C:13-2 (Criminal Restraint); ... section 2C:24-4a (Endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child); section 2C:24-4b(4) (Endangering the welfare of a child).... (Emphasis added).
[N.J.S.A. 2C:52-2b.[3]]

As is clear from reviewing the foregoing, the only pre-Code sex crime for which expungement is expressly barred is the crime of "rape."[4] "Rape" and "carnal knowledge" mean the same thing: "sexual intercourse with a woman against her will," which "does not occur without penetration." See State v. Riley, 28 N.J. 188, 206, 145 A.2d 601 (1958). "Carnal abuse," on the other hand, is an entirely separate and distinct crime. It has been defined as "`an act of debauchery of the female sexual organs by those of the male which does not amount to penetration.'" Application of Faas, 42 N.J.Super. 31, 35, 125 A.2d 724 (App.Div.1956), cert. denied, sub nom. Faas v. State of New Jersey, 353 U.S. 940, 77 S.Ct. 820, 1 L.Ed.2d 762 (1957) (quoting State v. Huggins, 84 N.J.L. 254, 259, 87 A. 630 (E. & A.1913)). We shall discuss the significance of this definition later in our opinion.

Relying on State v. M., 188 N.J.Super. 533, 457 A.2d 1237 (Law Div.1982), petitioner argued in the Law Division that his conviction for "carnal abuse," like "incestuous conduct," is eligible for expungement because it is not included in the list of ineligible pre-Code crimes in the first unnumbered paragraph of N.J.S.A. 2C:52-2b. He maintained that any other conclusion would amount to improper judicial legislation. The State countered, among other arguments, that the pre-Code crime of "carnal abuse" in the repealed statute, N.J.S.A. 2A:138-1, is subsumed by the crime of "rape" referenced in subsection b and, therefore, it is not eligible for expungement.

On January 29, 1999, the motion judge heard oral argument and denied N.W.'s expungement petition, reasoning, among other things, that it would be an unacceptable anomaly to bar expungement of less serious sex offenses under the Code, such as "criminal sexual contact,"[5] while allowing *822 expungement of the more serious pre-Code crime of "carnal abuse."

On appeal, petitioner makes the same arguments as he did in the Law Division.[6]

The issue is one of statutory construction. It requires us to interpret an exception to the general rule that permits expungement of a crime by a one-time offender after the expiration of ten years.

In construing a statute, we must effectuate the Legislature's intent as expressed by the clear language of the statute. Turner v. First Union Nat'l Bank, 162 N.J. 75, 84, 740 A.2d 1081 (1999). "[I]n the absence of an explicit indication of special meaning, words will be given their ordinary and well-understood meaning." Service Armament v. Hyland, 70 N.J. 550, 556, 362 A.2d 13 (1976).

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Related

State v. Riley
145 A.2d 601 (Supreme Court of New Jersey, 1958)
Application of Faas
125 A.2d 724 (New Jersey Superior Court App Division, 1956)
Service Armament Co. v. Hyland
362 A.2d 13 (Supreme Court of New Jersey, 1976)
In Re Application of R.
407 A.2d 1263 (New Jersey Superior Court App Division, 1979)
State v. M.
457 A.2d 1237 (New Jersey Superior Court App Division, 1982)
State v. Thompson
392 A.2d 678 (New Jersey Superior Court App Division, 1978)
Turner v. First Union National Bank
740 A.2d 1081 (Supreme Court of New Jersey, 1999)
State v. Thompson
430 A.2d 246 (New Jersey Superior Court App Division, 1981)
State v. Ferencsik
741 A.2d 101 (New Jersey Superior Court App Division, 1999)
State v. Churchdale Leasing, Inc.
557 A.2d 277 (Supreme Court of New Jersey, 1989)
Petition of Singer Asset Finance
714 A.2d 322 (New Jersey Superior Court App Division, 1998)
State v. A.N.J.
487 A.2d 324 (Supreme Court of New Jersey, 1985)
In re the Application for Expungement of F.A.U.
463 A.2d 344 (New Jersey Superior Court App Division, 1983)
In re R.C.
678 A.2d 339 (New Jersey Superior Court App Division, 1996)
State v. N.W.
747 A.2d 819 (New Jersey Superior Court App Division, 2000)
State v. Huggins
87 A. 630 (Supreme Court of New Jersey, 1913)
Holloman v. Jarnagin
353 U.S. 939 (Supreme Court, 1957)
Faas v. New Jersey
353 U.S. 940 (Supreme Court, 1957)

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