The opinion of the court was delivered by
Thе State appeals from the trial court’s April 2, 2012 order expunging R.Z.’s April 30,1999 judgment of conviction for second-degree theft by deception, N.J.S.A. 2C:20-4, and second-degree
I.
R.Z. and several other individuals and corporations were indicted by a State Grand Jury in September 1997 and charged with various crimes involving the Medicaid program. On December 23, 1998, R.Z. entered a plea to two counts of the indictment as part of an agreement in which the State promised to recommend concurrent sentences of six years, a fine of $5,000 on each count, and restitution of $50,500.
Defendant pled guilty to count fifteen, which charged that he committed theft “between on or about August 26, 1995 and ... December 22, 1995” in Paterson, Manalapan Township and elsewhere. Specifically, it was chаrged he
did obtain Medical Assistance payments under the New Jersey Medical Assistance and Health Services Act, (N.J.S.A. 30:4D-1 et seq.), in an amount in excess of $75,000, by submitting claims which created or reinforced the false impression that certain laboratory tests ... had been ordered by a physician and were performed on blood supplied by the Medicaid recipient who was the subject of the claim:
WHEREAS, in truth and fact, as ... [R.Z.] well knew, the laboratory tests ... had not been ordered by a physician and were not performed on blood supplied by the Medicaid recipient who was the subject of the claim, contrary to the provisions of N.J.S. A 2G:20-i, N.J.S. A 2C:2-6, N.J.S A 2C:2-7, N.J.S.A 2C:5-1L.]
Defendant also pled guilty to count sixteen, which charged he committed money laundering during a narrower time frame, “between on or about September 6,1995 and ... December 16,1995,”
did commit the offense of financial facilitation of сriminal activity (money laundering), in that [he] did engage in transactions involving property known to be derived from criminal activity, as set forth in Counts Thirteen, Fourteen and Fifteen of this indictment, ... knowing that the transactions were designed in whole or in part to conceal or disguise the nature, location, source, ownership or control of the property derived from criminal activity, that is Mohammad Javid, United Diagnostics Laboratories, Inc., and United Clinical Laboratory, Inc. did make pаyments to Astro Supply Company and Arshad Khan in the approximate amounts of $761,834.76 and $39,876.00, respectively, and did so in a manner designed to conceal or disguise the nature, location, source, ownership or control of the money because neither [R.Z.] nor Arshad Khan, t/a Astro Supply Company, supplied any goods or performed any services to warrant said payments, contrary to the provisions of N.J.S.A. 2C:21-25b, N.J.S.A. 2C:2-6, and N.J.S.A 2C:2-7[.]
In his allocution, defendant admitted that he was a manager of medical offices in Paterson for co-defendants Mohammad Javid and Arshad Khan. He stated he oversaw lab work sent to United Diagnostic Laboratories (United Diagnostic), a corporate defendant, and would bill Medicaid. He responded affirmatively when asked if he were aware “that forms or paper work that were being submitted to the lab were fraudulentf.]”
He explained, “Well, the lab—there used to be a patient—the Medicaid ID numbers. And they were just put on the lab forms. And blоod was drawn either from patients or came from people that would sell blood and be submitted to United Diagnostics Laboratory.” When asked what compensation he received “for working at the clinics,” defendant stated he received two checks, “[t]he amount of 50,500, approximately, October of '95. And I used that to purchase a car.”
Specifically regarding the money laundering count, he agreed he received the two cheeks totaling $50,500 from United Clinical Laboratory (United Clinical). United Clinical was also a corporate defendant distinct from United Diagnostics. He agreed the checks were drawn by Javid to a blank payee, and petitioner used them to purchase a Toyota Land Cruiser from Parkway Toyota. He agreed that he “knew that those two checks represented money that was fraudulently obtained from the Medicaid pro
At petitioner’s sentencing on April 30, 1999, the prosecutor asserted that petitioner and Khan, who was a fugitive, had received over $730,000 in kickbacks over three months from Javid. The prosecutor described petitioner as “one of the spokes of the cоnspiracy. He wasn’t the hub, but within his spoke he was clearly one of the central players.”
As noted, petitioner did not expressly admit in his allocution the total magnitude of the fraud, nor its time period, other than to state he received the $50,500 in checks in October 1995.
The court imposed a sentence in accord with the plea agreement: concurrent six-year terms on each count, fines of $5,000 for each count, and an order to pay restitution of $50,500 to the State. On the State’s motion, the court dismissed the remaining three counts against defendant, charging second degree conspiracy, N.J.S.A. 2C:5-2 (count one); and third degree Medicaid fraud, N.J.S.A. 30:4D-17(c), N.J.S.A. 2C:2-6, -7 (counts thirteen and fourteen). Defendant began serving his term of incarceration immediately, was released to the Intensive Supervision Program
On September 28, 2011, R.Z. filed a verified petition for ex-pungement.
After oral argument, the court granted the petition, and entered an order expunging the records of the convictions and the dismissed charges. In a written decision, the court rejected the State’s argument that petitioner was convicted of a “prior or subsequent crime,” N.J.S.A. 2C:52-2(a), and that pursuant to the statute and Ross, swpra, petitioner was barred from obtaining expungement. The court held petitioner’s two crimes were part of “an ongoing criminal scheme,” noting the time frame, September 6 to December 16, 1995, alleged in the indictment for the money laundering offense, was “subsumed” within the alleged rаnge for the theft, of August 26 to December 22,1995.
The State appeals and renews its argument that expungement is barred by the statute and Ross.
II.
The appeal requires us to consider the meaning of N.J.S.A. 2C:52-2(a), which permits expungement of an indictable conviction only if the petitioner “has not been convicted of any prior or subsequent crime[J” We must also determine who bears the burden to prove the absence of a prior or subsequent crime. Those are legal issues we consider de novo. Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378,
We compared the current statute with its predecessor, which barred expungement of a “subsequent conviction,” as opposed to a “subsequent crime,” and concluded the Legislature intended to narrow eligibility for expungement. Ibid, (comparing N.J.S.A. 2C:52-2 with N.J.S.A. 2A:164-28 (repealed 1978)). We observed the current law precluded the result we reached under the prior law in In re Fontana, 146 N.J.Super. 264,
The question before us is whether petitioner’s crimes occurred on “separate oсcasions.” Id. at 122,
Given its purpose to define when the limitations period commences, N.J.S.A. 2C:l-6c addresses when the commission of a crime is complete, as opposed to when it began. However, the commencement of a criminal act is relevant to the expungement decision. If a continuous theft began a month before a continuous money laundering, but both courses of conduct terminated on the same date, the crimes would be deemed simultaneous for limitations purposes under N.J.S.A 2C:l-6e, but the theft would have preceded the money laundering for expungement purposes. We reach that conclusion based on the express purpose of the ex-pungement statute to offer relief to one-time offenders. In re Kollman, 210 N.J. 557, 562,
Also critical to our analysis is allocation of the burden of proof. We conclude a petitioner bears the burden to show his or her crimes were committed concurrently, that is, that one crime was not committed “prior or subsequently]” to thе other. N.J.S.A. 2C:52-2(a). Our burden allocation decision is based on the broad principle that a petitioner bears the burden to establish pre-conditions to expungement. “In general, to support a petition for expungement, ‘[a] petitioner has the burden to satisfy the requirements of the expungement statute[,]’ by a preponderance
Once a petitioner satisfies his or her initial burden, “the burden then 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, (quoting In re G.R., 395. N.J.Super. 428, 431,
We deem the fact that a petitioner’s multiple crimes were committed concurrently to be a threshold requirement of expungement, which the petitioner therefore bears the burden to prove. The statute requires proof that there is no priоr or subsequent crime as a pre-condition to filing an expungement petition:
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 ... may, after the expiration of a period of 10 years from the date of his conviction, payment of fine, satisfactory completion of probation or parole or rеlease from incarceration, whichever is later, present a duly verified petition as provided in section 2C:52-7 . . praying that such conviction .. be expunged.
¡N.J.S.A. 2C:52-2(a) (emphasis added).]
In the usual expungement case involving a person convicted of a single crime, a petitioner meets his or her initial burden regarding a prior or subsequent crime simply by filing a petition that satisfies N.J.S.A 2C:52-7 and -8. A petition must disclose all offenses for which a defendant was convicted, N.J.S.A 2C:52-7(c), and the dates of arrest and conviction. N.J.S.A. 2C:52-7(e). Where the petitioner has been convicted of only one сrime, a conforming petition under N.J.S.A. 2C:52-7 would implicitly aver the absence of any prior or subsequent crime. “As a matter of practice, then, once a petition for expungement satisfies the requirements of N.J.S.A 2C:52-7 (setting forth required contents of petition), and -8 (describing required statements that must
However, in a case like the one before us, where a petition necessarily lists multiple offenses, the petition raises the issue whether the petitioner was eligible for filing in the first place. Compliance with sections seven and eight would not suffice to satisfy the filing pre-condition that there was no prior or subsequent crime. In such a case, the petitioner bears the burden to present prima facie proof that he or she satisfies the statutory pre-requisite.
A petitioner bears the burden to prove “the objective elements of section 2(a).” Kollman, supra, 210 N.J. at 570,
Also, our conclusion finds support in the Code’s default provision on burden allocation. Regarding a fact under the Criminal Code that is not an element of an offense, “unless the code otherwise рrovides ... [t]he burden of proving the fact is on the ... [party] whose interest or contention will be furthered if the finding should be made.” N.J.S.A. 2C:l-13d. See also County of Essex v. First Union Nat’l. Bank, 373 N.J.Super. 543, 555,
Finally, our determination is consistent with the general principle that in аllocating burdens of proof, we weigh heavily which party has the greater access to proofs. See J.E. ex rel. G.E. v. State, 131 N.J. 552, 569-70,
Conceivably, a petitioner’s detailed certification would suffice to present a primа facie case that the crimes were committed concurrently. The petitioner’s prior sworn statements in a plea allocution may, if sufficiently detailed, satisfy a petitioner’s initial burden. If the State disputes the petitioner’s claim, it may present opposing proofs.
In deciding the “prior or subsequent crime” issue, the court in other eases may need to consider evidence outside the existing record, particularly in the case of a conviction by plеa, if a petitioner’s allocution did not specifically address timing. In testing a petitioner’s proofs, the court may not simply rely on unproved and unadmitted allegations in an indictment. See Koll-man, supra, 210 N.J. at 576,
Undisputed facts regarding the timing of an offense may be gleaned from admissions at the plea or sentencing hearing, or at trial, and concessions in a рresentence report. Kollman, supra, 210 N.J. at 576,
Applying these principles, we discern insufficient cognizable evidence to support the court’s conclusion that petitioner committed the theft and money laundering offenses concurrеntly. The trial court erred in relying on the date ranges in the indictment, and concluding that one crime was not prior or subsequent to the other because the money laundering crime was “subsumed” within
Neither party supplemented the record with additional proofs regarding the dates of petitioner’s two crimes. As we do not have the petition, we do not know if petitioner certified, even conclusorily, the crimes were concurrent. Petitioner’s allocution was insufficient to enable the court to determine whether petitioner satisfied the statutory prerequisite.
Defendant admitted that he participated in the theft by deception of monies from the State Medicaid program. He did not date his participation, but he admitted he oversaw United Diagnostic’s lab work, and billed Medicaid; he knew fraudulent forms were submitted; and Medicaid ID numbers were “just put on the lab forms” in connection with blood samples from persons who “would sell blood.” These admissions were sufficient to satisfy the elements of a theft from the State Medicaid program.
In response to defense counsel’s question whether petitioner received compensation “for working at the clinics,” petitioner responded that in October 1995, he received two checks totaling $50,500, payable in blank, which he used to purchase a vehicle. He admitted that the $50,500 “represented money that was fraudulently obtained from the Medicaid program.” Therefore, we may infer the theft of at least $50,500 preceded petitioner’s receipt of the $50,500, becаuse the money first had to be procured from the Medicaid program and paid to a provider fraudulently seeking
However, petitioner also admitted that, regardless of whether he received “anything extra or not,” he assisted Khan and Javid in “attempting to hide the location of the money that was taken from the Medicaid program[.]” Given petitioner’s admission of additional undated money laundering activities, he may have engaged in money laundering of proceeds of thefts in which he did not participate. Similarly, given his admission of undated false submissions to the Medicaid program, he may have participated in thefts, the proceeds of which he did not launder. Consequently, the record does not reflect when defendant’s theft began and when it ended, and when his money laundering began and when it ended. It is plausible that defendant’s participation in thefts and money laundering coincided with each other.
Since the trial court mistakenly relied on the face of the indictment, petitioner should have an opportunity to present proofs, if any, outside the existing record of his plea, to attempt to satisfy his burden that neither one of his two crimes was committed prior to, or subsequent to the other. The State would have an appropriate opportunity to rebut.
Reversed and remanded. We do not retain jurisdiction.
Notes
During the sentencing hearing, reference was madе to a hearing on a prior motion to suppress evidence of petitioner, and a co-defendant’s trial. The record does not include transcripts of that hearing or trial. Although reference is also made to the State’s sentencing memorandum, and a probation report, neither those documents nor the presentence report are before us.
Neither party has provided the court with a copy of the petition. The State does not contest the expungement petition was timely filed pursuant to N.J.S.A. 2C:52-2(a), which provides for expungement "after the expiration of a period of 10 years from the date of ... conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, which ever is later[.]”
The objection is not before us.
While the theft charge alleged an amount at issue of over $75,000, which would satisfy the element of a second-degree offense, NJ.S.A. 2C:20-2b(l)(a), petitioner testified only to $50,500 in value.