In Re Lobasso
33 A.3d 540
| N.J. Super. Ct. App. Div. | 2012Background
- LoBasso sought expungement of a 2005 conviction for third-degree eluding under N.J.S.A. 2C:29-2b.
- 2010 amendment added a five-year early pathway if public interest supports expungement after five years post-sentence.
- Petition filed Oct 29, 2010, less than five years after completing probation (Jan 24, 2006).
- Trial court denied after considering offense nature, petitioner’s conduct since conviction, and arrest-related evidence.
- Court treated early-pathway relief as discretionary and not routine, weighing public interest against the petition.
- Appellate Division affirmed denial, reviewing the discretionary public-interest determination and evidentiary considerations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court properly applied the 2010 amendment | LoBasso argues the five-year pathway is discretionary and not extraordinary. | State contends the court properly weighed public interest under the amendment. | Yes; court’s discretion properly applied, denying expungement. |
| Whether arrest evidence of a dismissed charge could be considered | LoBasso contends arrest evidence cannot demonstrate conduct post-conviction. | State argues arrest-related facts may be considered if supported by cognizable evidence. | Yes; court may consider such evidence when assessing conduct since conviction. |
| Whether petitioner was denied due process by limited opportunity to be heard | LoBasso claims denial of hearing violated due process. | State/Ecourts maintained court attempted to accommodate but petitioner declined. | No; petitioner had opportunity to be heard and declined continued proceedings. |
Key Cases Cited
- In re J.N.G., 244 N.J. Super. 605 (App.Div.1990) (expungement presumptively granted when requirements met)
- In re D.H., 204 N.J. 7 (2009) (burden on petitioner to prove statutory requirements by preponderance)
- State v. Brooks, 175 N.J. 215 (2002) (arrest records may be used to assess circumstances of offense; not to prove guilt)
- State v. XYZ Corp., 119 N.J. 416 (1990) (high-level defense of record-availability balancing standard)
- State v. Green, 62 N.J. 547 (1973) (arrest records in sentencing and related contexts; use of factual records)
- Paradise Enters. v. Sapir, 356 N.J. Super. 96 (App.Div.2002) (standard of review for discretionary decisions)