In re the Expungement of the Criminal Records of R.Z.
58 A.3d 1178
N.J. Super. Ct. App. Div.2013Background
- R.Z. pled guilty to theft by deception and money laundering tied to Medicaid fraud in 1995; sentences were concurrent.
- Expungement petition filed September 28, 2011; State objected citing N.J.S.A. 2C:52-2(a) and prior/subsequent crime bar.
- Trial court granted expungement, rejecting argument that R.Z. had prior/subsequent crimes due to Ross rule.
- Court found the two offenses formed an ongoing scheme with overlapping time frames but within same overall period.
- State appealed, arguing crimes were committed on separate occasions, barring expungement under 2C:52-2(a).
- Appellate panel reversed and remanded to allow proof that crimes were concurrent, not on separate occasions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether two crimes were committed on separate occasions | R.Z. committed theft and money laundering as part of one scheme. | Crimes were concurrent, not separate, entitling expungement. | Crimes not proven concurrent; remanded for evidentiary proof. |
| Burden of proof on pre-condition of no prior/subsequent crime | Petitioner bears burden to show no prior/subsequent crime. | State bears burden to show statutory bar. | Petitioner bears burden to prove no prior/subsequent crime. |
| Proper method to determine timing when multiple offenses involve courses of conduct | Timing should be inferred from plea allocution and record. | Indictment timing controls and precludes concurrent finding. | Record insufficient; remand to allow supplementary proof of timing. |
Key Cases Cited
- In re Ross, 400 N.J. Super. 117 (App.Div. 2008) (whether crimes were committed on separate occasions governs expungement eligibility)
- Kollman, 210 N.J. 557 (2012) (burden to prove concurrent crimes; timing crucial for eligibility)
- In re D.H., 204 N.J. 7 (2010) (petitioner bears burden to satisfy expungement requirements by preponderance)
- In re G.R., 395 N.J. Super. 428 (App.Div. 2007) (burden shifts to State after initial burden when filing for expungement)
- State v. Diorio, 422 N.J. Super. 445 (App.Div. 2011) (money laundering course of conduct; limitations considerations)
- State v. Jurcsek, 247 N.J. Super. 102 (App.Div. 1991) (theft by deception involving continuing offenses and aggregation for grading)
- In re LoBasso, 423 N.J. Super. 475 (App.Div. 2012) (undisputed facts outside plea may be considered when appropriate)