The Expungement Statute and the "Early Pathway" Exception

In New Jersey, certain crimes can be expunged from an individual's record.  Ordinarily, the individual must wait ten (10)  years after he/she has completed a sentence of incarceration, parole, probation or the payment of a fine, whichever occurs last.  In 2010, the legislators amended the statute to allow an individual to petition the court for an expungement five (5) years after the trigger dates reference above, where there are special circumstances. The core of the statute can be found in the following language which allows an early pathway expungement if  "the court finds in its discretion that the expungement is in the public interest, giving due consideration to the nature of the offense and the applicant's character and conduct since conviction".

Recently, an appellate panel had the opportunity to address the scope of this statutory exception. In that case, the applicant was convicted in 2005, for a third-degree eluding offense. Apparently, a year earlier, defendant was seen by a local law enforcement officer violating a number of motor vehicle laws while operating his motorcycle. When the police officer pursued, defendant sped-off taking the police officer on a wild chase. The next day, defendant visited police headquarters and reported that his motorcycle was stolen.  While there, the original police officer recognized defendant.  After some questioning, defendant admitted his illicit operation the day before and that the theft report was false.  He ultimately pled guilty to an eluding offense under a plea agreement where other charges were dismissed.

In his petition for expungement, defendant claimed that he was a homeowner and that he was gainfully employed. In addition, he submitted unsworn letters from a former wife and a police officer in Pennsylvania, attesting to his good status in the community. The government, on the other hand, develop that the individual had been involved in a subsequent domestic violence incident  where the victim allege that he seriously assaulted her.  Moreover, as a result of this incident, the government confiscated a handgun and other weapons belonging to defendant.

In rendering its decision, the trial court determined that expungement petitions filed under the early pathway exception to the statute was "extraordinary relief.” In addition, the court determined that defendant posed a risk to public safety, noting the domestic violence incident.  In denying defendant’s application, the trial judge also considered the offenses that were dismissed when defendant agreed to plead to the eluding offense that precipitated the expungement application. On appeal, defendant argued, among other things, that the trial judge should not have considered the offenses that were dismissed as a result of his plea negotiations or the domestic violence incident.

The appellate court began a review of the questions posed by defendant by noting that there were a number of components to the amendment to the statute that required an analysis, including: a) the public interest concept; 2) the nature of the offense; and, 3) the applicant's character and conduct since conviction. The court also said that the so-called "early pathway" authorized by the amendment would not be routine and that something more than a "mere offense free passage of time is required.”

As to the public interest concept, the court said that it should not be concluded that an applicant could meet this part of the statute "only in rare or unusual cases” and that was so because such a  stringent standard would defeat the statutory purpose of the exception.

It also said that for purposes of analyzing the public interest concept the applicant’s character before and after the conviction could be considered. Thus, if an individual had a history of domestic violence and serious motor vehicle violations those events could be considered by a trial judge, as well.

As to the "conduct and character" standard contained in the statutory amendment the court said that the concept was extremely fact sensitive.  In this regard, the court said that an early pathway applicant should show that he has engaged in conduct that has limited the potential of violating the law, by showing, among other things, his/her job-training, education, activity in the community, relationships with others, as well as a commitment to abide by other legal responsibilities, including fateful payment of child support and other financial obligation. Another factor would be the applicant's performance while incarcerated on probation or parole.

With respect to the nature of the offense component of the amendment, the court said it was clear that the serousness of the offense was relevant.  In addition, the circumstances associated with the offense was equally relevant. Thus, the court said if defendant’s effort to elude the investigating police officer created special harm to the officers or other third parties those issues should be considered. The court specifically concluded that the charges dismissed under defendant’s plea arrangement could also be considered.

Given the circumstances of the case, the court determined that the trial judge did not abuse its  discretion. The opinion is a very informative one. It should be read carefully to develop factual and procedural nuances associated wit early pathway expungement application.  Simply stated, if you intend to file an application under the early pathway amendment that application must be well documented and laden with all types of facts.