Criminal Expungements

The courts continued to make obtaining expungements of criminal records more difficult in spite of new law passed in 2010, attempting to make obtaining a criminal expungement easier. The latest hurdle comes with the case Expungement of Criminal Records of P.M. (Decided December 17, 2012). In that case a defendant with seven separate convictions was denied expungement in spite of the fact that he was sentenced on the same date and the convictions were also all on the same date. In this case the "single-spree" doctrine did not apply because there were separate victims over a four month period.

In the year (2010), the New Jersey State Legislature made it much easier for person with a criminal record to have their conviction expunged. Previous to the new law there was a mandatory waiting period of 10 years after completion of parole or probation was terminated for the application to be made. Now under the new law the waiting period is 5 years, and with the Court's discretion an expungement can be granted. Also, under the new law more offenses that were previously not subject to expungement now are. Because of state of our economy, it is more important that all criminal records that can be expunged are. For my blog on this subject see.

In addition, a petitioner seeking an criminal Expungement prior to the automatic Expungement period of 10 years is only entitled to the "extraordinary relief", when the petitioner proves by a preponderance of evidence that it is in the public's interest to grant early expungement. Under the current law it is discretionary for the judge to grant such early relief, that is expungement after waiting 5 years. The new case which petitioners should be aware of is In the matter of Lobasso, decided by the appellate division on January 10, 2012. The new law is still unsettled in this area, and this case should not discourage people for seeking early expungement. 

In attempting to expunge a criminal record it is often necessary that the attorney seeking the Expungement for his client be creative in his arguments to the court. For example, it can be argued that any conviction for conspiracy (N.J.S.A. 2C: 5-2) regardless of the offense, can be expunged because nowhere does the Expungement statue prohibit such a conspiracy Expungements. The argument that this New Jersey Criminal Defense attorney makes is that the rules of statutory construction require that the statutory exclusions under N.J.S.A. 2c:52-2(b) must be strictly construed. For example, it can be argued that a conviction for endangering the welfare of a child (N.J.S.A. 2C:24-4a) should be expunged because the Expungement exclusion for that particular offense under N.J.S.A. 2C:52-2(b), states

To be engaged in sexual conduct which would impair or debauch the mortals of a child, and not the alternative ground for conviction which is causes the child harm that would make the child an abused or neglected child, as found in the language of Title 9 for the endangering the welfare of a child.

The Law Office of Vincent J. Sanzone, Jr., has helped many people with a criminal record get a fresh start in life, and successfully petitioned the Court for an Order of Expungement. For more detail on your rights to have a criminal record expunged go to the New Jersey Judiciary Web Page.

Expungement and Federal Crimes and Misdemeanors

Any federal arrest or conviction in New Jersey comes under the jurisdiction of the Third Circuit Court of Appeals. Accordingly, the federal third circuit has held that anyone arrest or convicted of a crime, including all persons that had their cases dismissed, either by a dismissal by the United States Attorney or acquittal by a jury are not entitled to any form of expungement. The Third Circuit covers, New Jersey, Pennsylvania, Delaware and the U.S. Virgin Islands. Therefore, anyone arrested by federal authorities and charged, even if the case is dismissed cannot obtain an expungement of that arrest or dismissal. United States v. Dunegan, 251 F.3d 477, 478 (3d Cir. 2001); United States v. Rowlands, 451 F.3d 173 (3d Cir. 2006) Typically, it seems that the United States Congress is not interested in seeking justice and allowing even people who have had their cases dismissed receive an expungement order. Therefore, former defendants, even innocent ones, are forced to cope with continued injury to their reputations, and difficulty in obtaining employment, even when the charges are dropped. It is estimated that 80% percent of American employers conduct background checks for criminal records. This figure comes from a study by the Society for Human Resource Management. Rests assure any arrest, even one that lead to a dismissal will surely give the employer an excuse not to hire.

New Jersey Expungement Lawyer Expungement Update

After the petitioner-defendant obtains his or her expungement Order from the Court it is suggested that a copy of the Order be submitted to the three major credit reporting bureaus or agencies.

Equifax: 800-685-1111 (general) or 800-525-6285 (fraud); P.O. Box 740241, Atlanta, GA 30374.

Experian: 888-397-3742 (general and fraud); PO Box 2002, Allen, TX 75013.

TransUnion: 800-888-4213 (general) or 800-680-7289 (fraud); P.O. Box 2000, Chester, PA 19022.

This is advisable because these credit bureaus often have subdivisions which track criminal histories and will provide these criminal histories to employers or others, for a fee. Almost every employer today, will obtain a credit report on prospective employees.

Also, all federal law enforcement agencies, including the FBI must honor state court expungement orders. Therefore, it is advisable that they be contacted as well.

28 CFR 16.34 - Procedure to obtain change, correction or updating of identification records.

28 CFR § 16.34 states:

Procedure to obtain change, correction or updating of identification records.

If, after reviewing his/her identification record, the subject thereof believes that it is incorrect or incomplete in any respect and wishes changes, corrections or updating of the alleged deficiency, he/she should make application directly to the agency which contributed the questioned information. The subject of a record may also direct his/her challenge as to the accuracy or completeness of any entry on his/her record to the FBI, Criminal Justice Information Services (CJIS) Division, ATTN: SCU, Mod. D-2, 1000 Custer Hollow Road, Clarksburg, WV 26306. The FBI will then forward the challenge to the agency which submitted the data requesting that agency to verify or correct the challenged entry. Upon the receipt of an official communication directly from the agency which contributed the original information, the FBI CJIS Division will make any changes necessary in accordance with the information supplied by that agency.