                         RECORD IMPOUNDED

                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1345-13T4
                                         APPROVED FOR PUBLICATION
IN THE MATTER OF THE
EXPUNGEMENT APPLICATION                         July 17, 2014
OF P.H. PURSUANT TO
N.J.S.A. 2C:52-1 to -32.                      APPELLATE DIVISION
_______________________________

           Argued June 4, 2014 - Decided July 17, 2014

           Before Judges Lihotz, Maven and Hoffman.

           On appeal from the Superior Court of New
           Jersey,   Law  Division,   Monmouth County,
           Municipal Appeal No. 12-5375.

           Mary R. Juliano, Special Deputy Attorney
           General/Acting Assistant Prosecutor, argued
           the cause for appellant State of New Jersey
           (Christopher J. Gramiccioni, Acting Monmouth
           County Prosecutor, attorney; Ms. Juliano, of
           counsel and on the brief).

           Edward C. Bertucio argued the cause for
           respondent   P.H.    (Hobbie,   Corrigan  &
           Bertucio, P.C., attorneys; Mr. Bertucio, of
           counsel; Justin Lee Klein, on the brief).

      The opinion of the court was delivered by

LIHOTZ, J.A.D.

      In this appeal we consider the impact of the expungement

statute upon charged indictable and disorderly persons offenses

ultimately resolved through imposition of a civil penalty, which

is   ineligible   for   expungement.    The    State   appeals     from   an

October 31, 2013 order granting P.H.'s petition for expungement
of all records relating to a criminal complaint charging P.H.

with animal cruelty in the death of a dog.               The order required

expungement of the original complaint, records of P.H.'s arrest

and detention, and the indictment and decision to downgrade the

charges, which were ultimately dismissed.                The order did not

expunge the final disposition resulting from P.H.'s admission to

a civil violation.      The State argues:

            POINT I

            THE PETITION FOR EXPUNGEMENT SHOULD HAVE
            BEEN DENIED BECAUSE PETITIONER'S ANIMAL
            CRUELTY    PROCEEDINGS   RESULTED IN  AN
            UNEXPUNGEABLE CIVIL DISPOSITION.

            POINT II

            ALTERNATIVELY,    EXPUNGEMENT   WAS                BARRED
            PURSUANT TO N.J.S.A. 2C:52-14c.

We affirm.

    The facts essentially are not disputed.                    In 2012, P.H.'s

dog died of asphyxiation after being hanged from a door by its

leash.     P.H. was arrested and charged with fourth-degree animal

cruelty,     N.J.S.A.    4:22-17(b)(2)        (amended        2013),    and    the

disorderly    persons   offense   of   animal      cruelty,     N.J.S.A.      4:22-

17(b)(1)    (amended    2013).1   Bail       was   set   at    $1,500,   no     ten

percent, which P.H. paid and was released.


1
     P.H. was     charged under            a statute     prohibiting animal
cruelty, which    was thereafter           amended on    August 7, 2013 by
                                                                 (continued)


                                       2                                 A-1345-13T4
    A     county     grand   jury     reviewed      the   case     and      found

insufficient   evidence      to   return    an    indictment.      The      State

downgraded the fourth-degree offense to two disorderly persons

(DP) offenses under N.J.S.A. 4:22-17(a)(1) (amended 2103) and

N.J.S.A. 4:22-17(a)(3) (amended 2013), and returned the two DP

charges   to   the   municipal      court   for    disposition.2            After



(continued)
"Patrick's Law," L. 2013, c. 88, § 2.       The provisions under
which P.H. was initially charged read in pertinent part:

           b.   A    person   who    shall            purposely,
           knowingly, or recklessly:

           (1) Torment, torture, maim, hang, poison,
           unnecessarily or cruelly beat, or needlessly
           mutilate a living animal or creature; or

           (2) Cause or procure, by any direct or
           indirect means, including but not limited to
           through the use of another living animal or
           creature, any such acts to be done—

           Shall be guilty of a crime of the fourth
           degree.

           [N.J.S.A. 4:22-17(b) (amended 2013).]

Following the 2013 amendment, conduct formerly criminalized by
this subsection remains punishable as a crime of the fourth
degree pursuant to N.J.S.A. 4:22-17(c) and (d), which broadens
the prohibited conduct to include "[c]aus[ing] bodily injury to
a living animal or creature by failing to provide the living
animal or creature with necessary care[.]"
2
     The prior version of the statute punished as a disorderly
persons offense the "[o]verdriv[ing], overload[ing], driv[ing]
when overloaded, overwork[ing] . . . or needless[] kill[ing of]
a living animal or creature[,]" N.J.S.A. 4:22-17(a)(1) (amended
                                                    (continued)


                                      3                                  A-1345-13T4
negotiations     between    P.H.    and       a   New   Jersey    Society     for   the

Prevention of Cruelty to Animals (NJSPCA) representative, who

was present in municipal court, P.H. admitted to a violation of

a   different    statute,    N.J.S.A.         4:22-26(a)(1)        (amended    2013),

which requires payment of a $1,000 civil penalty.3                    The municipal

prosecutor      approved    the    agreement        and    presented    it     to   the

municipal    court    judge,      who     accepted        the    resolution.        The

municipal court judge imposed the fine and added a condition




(continued)
2013), as well as the "[i]nflict[ion] [of] unnecessary cruelty
upon a living animal or creature, by any direct or indirect
means," N.J.S.A. 4:22-17(a)(3) (amended 2013).     Subsequent to
the amendment, N.J.S.A. 4:22-17(b)(1) now classifies the
aforementioned   conduct  as   a  disorderly   persons   offense.
Further, portions pertaining to the neglect of animals have been
revised and re-classified as a fourth degree offense pursuant to
N.J.S.A. 4:22-17(c)(2).
3
      At the time, N.J.S.A. 4:22-26(a)(1) prohibited:

            a.   (1)        Overdriv[ing],   overload[ing],
            driv[ing] when overloaded, overwork[ing],
            depriv[ing]      of    necessary    sustenance,
            abus[ing], or needlessly kill[ing] a living
            animal    or    creature,   or   caus[ing]   or
            procur[ing], by any direct or indirect
            means, including but not limited to through
            the   use    of   another   living  animal   or
            creature, any such acts to be done[.]

The 2013 amendment merely deleted the term "deprive of necessary
sustenance[.]" N.J.S.A. 4:22-26(a)(1).




                                          4                                   A-1345-13T4
prohibiting P.H. from owning a dog for five years.                             The DP

offenses were dismissed.4

        Thereafter, P.H. filed a petition for expungement of all

criminal records, specifically seeking to expunge "evidence of

the . . . complaint; of any evidence of arrest for same; and of

any evidence of detention for same."                       The State opposed the

motion.

      The   matter     was    argued    before      the    Law   Division.        After

giving careful consideration to the respective positions, the

judge    granted    the   petition,      noting      the    facts     presented   were

unique    and    the   provisions      of       N.J.S.A.   2C:52-6     and    N.J.S.A.

2C:52-14(c) did not neatly apply.                    The judge determined the

records relating to the civil penalty were "not going away" and

the     NJSPCA     retained     a      separate      record      of     the   events.

Specifically, the judge noted:

                 And I think[] in fairness . . . both
            areas are protected. As [I have] read cases
            with regard to expungement, it seems as if
            [it is] getting a little bit more liberal to
            allow people to carry on with their careers,
            as [P.H.'s counsel] argues.     But I think
            that, clearly, the interest of the State is
            also protected in that this is just not
            going away.    It will be there.      Animal
            control is aware of it, and that any


4
     In his certification regarding the disposition                            of the
municipal   matter,   Municipal  Prosecutor   James  N.                         Butler
characterized the disposition as "a plea agreement."



                                            5                                 A-1345-13T4
               references that talk about the civil aspect
               would not be redacted and sealed.

The    judge    made   clear   the    records   of   P.H.'s   admission     to   an

offense resulting in the imposition of a civil penalty would not

be expunged.       Rather, the judge confined the terms of the order

to expunging those criminal records associated with charges that

were dismissed and to which P.H. was not convicted.                 An October

31, 2013 order was entered, from which the State filed this

appeal seeking reversal.5

       The     State   maintains     expungement     was   erroneously    granted

because P.H. cannot meet the statutory standard providing relief

only

               [i]n all cases, except as herein provided,
               wherein a person has been arrested or held
               to answer for a crime, disorderly persons
               offense, petty disorderly persons offense or
               municipal ordinance violation under the laws
               of this State or of any governmental entity
               thereof and against whom proceedings were
               dismissed, or who was acquitted, or who was
               discharged without a conviction or finding
               of guilt, may at any time following the

5
     Prior to the matter being listed for oral argument, the
State moved to strike portions of P.H.'s brief, including
arguments and documents not presented to the Law Division. The
reviewing panel denied the motion to strike, directing "[t]he
merits panel can determine whether the disputed statements in
[P.H.'s] brief are supported by the record on appeal."       It
appears P.H. removed any contested material from P.H.'s
appendix, mooting that aspect of the motion.   Whether P.H. has
advanced arguments based on these materials is not addressed in
the merits briefs, suggesting it too is moot.




                                         6                                A-1345-13T4
            disposition of proceedings, present a duly
            verified petition as provided in N.J.S.A.
            2C:52-7 to the Superior Court in the county
            in which the disposition occurred praying
            that records of such arrest and all records
            and   information  pertaining   thereto  be
            expunged.

            [N.J.S.A. 2C:52-6(a).]

    Specifically, the State argues P.H. was not acquitted or

discharged without a finding of guilt and the charges were not

dismissed.     Rather, P.H. was "charged with indictable crimes

. . . which, ultimately after downgrade, remand, and then plea

negotiations, were disposed of by way of imposition of a civil

penalty," a disposition "ineligible for expungement."

    The State rejects what it characterizes as P.H.'s "created"

criminal-civil     dichotomy,    asserting       the    facts   supporting    the

civil    violation   remain     the   same     as     those   underpinning    the

initial criminal charges and it is the ultimate outcome — i.e.,

admission to a civil penalty — that determines the eligibility

for expungement of records.           The State asserts "[s]imply, it is

one file . . . and there is only one record," therefore, "the

disposition of [P.H.'s] arrest was not a 'dismissal[,]' but a

guilty   finding     of   an   amended       charge    that   carried   a   civil

penalty."     The State concludes "[n]othing in the expungement

statute suggests an intent to parse the proceedings that flow

from a criminal complaint in such a manner in order to grant




                                         7                              A-1345-13T4
partial         expungement      of     criminal       files."         Accordingly,        the

ultimate disposition requires all records "concerning" P.H.'s

"ineligible        civil    disposition"            including      those     regarding    the

initial criminal charges remain unaltered.                         N.J.S.A. 2C:52-1.

       P.H. counters, arguing, as remedial legislation, the terms

of the statute must be construed broadly in favor of granting

relief.          Therefore,      P.H.    maintains         the    downgraded      disorderly

persons charges were "dismissed" as the term is used in N.J.S.A.

2C:52-6(a).          P.H.     finds      support      for     this    assertion      in    the

municipal        prosecutor's         affidavit,       included       with    the   State's

opposition before the Law Division.                         The prosecutor avers the

disorderly persons charges were "dismissed."

       In reviewing the question posed, "our role is to effectuate

the legislative intent of the expungement statute[,]" N.J.S.A.

2C:52-1 to -32.           In re Expungement Petition of D.H., 204 N.J. 7,

17 (2010) (internal quotation marks and citation omitted).                                  We

do   not    defer    to    the    legal       conclusions         reached    by   the   trial

court; our review of the statute is de novo.                          State v. K.W., 214

N.J. 499, 507 (2013) (citing Manalapan Realty, L.P. v. Twp.

Comm.      of    Manalapan,      140     N.J.       366,    378    (1995)    (noting      that

"interpretation of the law and the legal consequences that flow

from    established         facts       are     not        entitled    to     any   special

deference")).




                                                8                                   A-1345-13T4
       "The expungement of criminal records is available only if

authorized by legislation.              There is no constitutional or common

law right to the expungement of records relating to a criminal

conviction."       In re Expungement Application of G.P.B., __ N.J.

Super. __, __ (App. Div. 2014) (slip op. at 3).                         In this regard,

a     petitioner    bears        the    burden      to    satisfy       the        statutory

requirements entitling him or her to an order of expungement.

In    re   G.R.,   395    N.J.    Super.     428,    431       (App.    Div.),      certif.

denied, 193 N.J. 275 (2007).                 "Where the petitioner meets the

burden,     the    [S]tate       has   the    burden      of    demonstrating          by    a

preponderance of the evidence that there is a statutory bar or

that the petition should not be granted."                       Ibid.         Accordingly,

the    Legislature       provides      for   the    expungement         of     arrest     and

criminal      records,     under       certain      conditions         and    subject       to

enumerated exceptions.            In re Expungement Application of P.A.F.,

176 N.J. 218, 220 (2003).

       When   expungement         is   ordered      the    statute       requires        "the

extraction and isolation of all records on file with any court,

detection or correctional facility, law enforcement or criminal

justice agency concerning a person's detection, apprehension,

arrest, detention, trial or disposition of an offense within the

criminal justice system."               N.J.S.A. 2C:52-1(a).                 Nevertheless,

the    statute     does    not    order      "the    destruction[]            of    expunged




                                             9                                      A-1345-13T4
records,"6    D.H., supra, 204 N.J. at 17, and "the records remain

available    to    the     judiciary    and    law     enforcement    for   certain

purposes, N.J.S.A. 2C:52-17 to -23, -27c."                   P.A.F., supra, 176

N.J. at 221.

     Our     review      of    the   statute's       provisions    "discloses      an

expressed design to deal only with criminal charges and their

consequences."        In the Matter of the Expungement of the Criminal

Record of M.D.Z., 286 N.J. Super. 82, 85 (App. Div. 1995).                        "In

setting    forth    the       requirements     for    expungement    relief,      the

statute    differentiates          between    indictable     offenses   [N.J.S.A.

2C:52-2] and disorderly persons offenses [N.J.S.A. 2C:52-3],"

D.H., supra, 204 N.J. at 17, as well as violations of municipal

ordinances, N.J.S.A. 2C:52-4.7               Records of civil violations are

ineligible    for     expungement.           N.J.S.A.    2C:52-6(a)     (providing

expungement       relief      is   available    only    as   set   forth    in    the

statute).

     As noted, the State's strict construction argument insists

the criminal charges were not dismissed but modified subject to


6
     "Expunged records . . . include complaints, warrants,
arrests,   commitments,   processing records, fingerprints,
photographs, index cards, 'rap sheets' and judicial docket
records." N.J.S.A. 2C:52-1(b).
7
     The   statute also  addresses  expungement of  juvenile
adjudications, N.J.S.A. 2C:52-4.1, and young drug offenders,
N.J.S.A. 2C:52-5.



                                         10                                 A-1345-13T4
the    terms    of    a    plea     agreement;    and,     since    the    ultimate

disposition was civil, expungement relief is not available to

P.H.   We are not persuaded.

       As   the      Law    Division      judge   observed,        the    statutory

provisions do not squarely address the circumstances presented

and it appears unlikely the Legislature contemplated the unique

situation when an indictable charge ultimately is resolved by

imposition     of    a     civil    monetary    penalty.      Faced       with   this

anomaly, we note a court "'may also turn to extrinsic guides if

a literal reading of the statute would yield an absurd result,

particularly one at odds with the overall statutory scheme.'"

In re Princeton Office Park,             __ N.J. __, __ (2014) (slip op. at

17) (quoting Wilson v. City of Jersey City, 209 N.J. 558, 572

(2012)).

       "The chief aim when interpreting a law is to determine and

give effect to the Legislature's intent."                   In re D.J.B., 216

N.J.   433,    440    (2014)       (citation   omitted).     We    discerned      the

legislative intent "from the enactment 'when read in the full

light of its history, purpose and context.'"                   State v. Lewis,

185 N.J. 363, 369 (2005) (quoting State v. Gill, 47 N.J. 441,

444 (1966)).         Also, we are guided by the Code's inclusion of

this instruction:

              The   provisions  of  the code  shall  be
              construed according to the fair import of



                                          11                                A-1345-13T4
           their terms but when the language is
           susceptible of differing constructions it
           shall be interpreted to further the general
           purposes stated in this section and the
           special purposes of the particular provision
           involved.       The   discretionary   powers
           conferred by the code shall be exercised in
           accordance with the criteria stated in the
           code and, insofar as such criteria are not
           decisive, to further the general purposes
           stated in this section.

           [N.J.S.A. 2C:1-2(c).]

See also State v. Hudson, 209 N.J. 513, 541 (2012) (Patterson,

J., dissenting).

      Importantly, the expungement statute "expresses a clear,

'primary objective of providing relief to the one-time offender

who has led a life of rectitude and disassociated himself [or

herself] with unlawful activity.'"              D.H., supra, 204 N.J. at 17

(quoting N.J.S.A. 2C:52-32).             See also In re Kollman, 210 N.J.

557, 568 (2012) ("[T]he statute is designed to eliminate the

collateral   consequences      imposed         upon     otherwise      law   abiding

citizens who have had a minor brush with the criminal justice

system.").   Noting "[t]he statute begins with the language:                       'In

all cases, except as herein provided . . . .[,]'"                            P.A.F.,

supra, 176 N.J. at 223 (quoting N.J.S.A. 2C:52-2(a)), the Court

has   instructed   "it   is   not   the       general    rule,   but    rather     the

exceptions   that    are      to    be     construed       narrowly."           Ibid.

(citations omitted).




                                         12                                  A-1345-13T4
    The State's position expressed in this case leads to an

illogical and unfair result, which we find is at odds with this

clearly expressed legislative intent of the expungement statute.

Following the statute's reasoning, had P.H. capitulated and pled

to a DP, or even a petty DP offense, the criminal records would

be subject to expungement.          N.J.S.A. 2C:52-3.        However, because

P.H. rejected the State's allegation the incident demonstrated

criminal conduct and insisted the dog accidentally died during

training, P.H. must forever be saddled with disclosing records

of criminal indictment, arrest, detention, bail and downgrade

even though no criminal disposition occurred.                 We conclude the

more reasonable common-sense interpretation favors expungement

in this instance and conclude the facts presented fit within

N.J.S.A.   2C:52-6(a)     because      P.H.'s      criminal     charges     were

"discharged    without    a     conviction   or    finding    of   guilt"    and

"dismissed."     See State ex rel. K.O., 217 N.J. 83, 94 (2014)

("Statutory language is entitled to its ordinary meaning and to

be given a common-sense construction.").                See also State v.

Galicia,   210   N.J.    364,    400   (2012)     (Albin,    J.,   dissenting)

(favoring common sense interpretation of the Code's statutory

provisions).

    Importantly, P.H. was not "found guilty," nor was a guilty

plea entered.    Rather, the record contains P.H.'s admission he




                                       13                             A-1345-13T4
violated     a     civil       statute.          This      distinction       is        extremely

important     as    it     obviates       the    State's      concern       that        granting

expungement      in     this    circumstance          may    subject       each    and     every

criminal     plea       agreement      to       partial      expungement          of     records

evincing initial criminal charges, indictment, arrest and the

like.

      The State's reliance on the pre-Code opinion of Sawran v.

Lennon, 19 N.J. 606 (1955), to suggest civil suits for penalties

may     be   equated       with     criminal          or    quasi-criminal             ordinance

violations ignores the specific pronouncement of the Court in

that matter, which held: "Suits for penalties, however, though

originating        in    the    same   way      by    statutes,       or    in     ordinances

adopted pursuant to appropriate statutes, are neither criminal

nor   quasi-criminal           in   nature      but     civil.     Such      offenses         are

punishable, as the name implies, by penalties[.]"                                 Id. at 612

(internal citations omitted).

      We     also       find    unavailing           the    State's        assertion        that

expungement of the initial criminal charges is prohibited as the

same conduct supported both the criminal and civil violations of

the respective statutes.               Without examining the details of the

facts against the requisites of the respective statutes, we note

Chapter 22, which is designed to prevent cruelty to animals,

N.J.S.A.     4:22-11.1         to   -60,     includes        two   distinct            statutory




                                                14                                      A-1345-13T4
schemes,       differentiating            criminal       prosecutions     from      civil

actions.       Also apparent is the different burdens of proof in the

respective proceedings.               Dep't of Conservation v. Scipio, 88

N.J.   Super.     315,       322    (App.    Div.)       ("[C]ivil    proceedings       to

recover    a    statutory      penalty       do    not    require     proof    beyond     a

reasonable      doubt    that       the     accused      transgressed    the     law."),

certif. denied, 45 N.J. 598 (1965).

       Further, we find unpersuasive the suggestion this matter

falls within the exception delineated by the statute because

P.H.'s admission evinced "a plea agreement" and P.H.'s admission

to the civil offense precludes further prosecution for the same

facts.     This was a negotiated result, but it is not a plea

agreement.

       The "Guidelines for Operation of Plea Agreements in the

Municipal Courts of New Jersey," included in the Appendix to

Part VII of the Rules, specifically provides plea agreements

relate to offenses, which by definition excludes civil matters.

Guidelines for Operation of Plea Agreements in the Municipal

Courts of New Jersey, Pressler & Verniero, Current N.J. Court

Rules,    Guideline      1    at    2501    (2014).        ("The    purpose    of   these

Guidelines is to allow for flexibility in the definitions and

exclusions      relating       to    the    plea     agreement       process   as    that




                                             15                                  A-1345-13T4
process evolves and certain offenses come to demand lesser or

greater scrutiny.").

      Additionally, the State's reliance on State v. Womack, 145

N.J. 576 (1996), to suggest double jeopardy attaches to civil

penalties      is   inapposite.            In     Womack,     the    defendant        faced

criminal charges following civil adjudication of his conduct of

practicing medicine without a license.                      Id. at 581.       The Court

concluded double jeopardy may attach precluding prosecution if

the civil penalty is punitive rather than remedial.                          Id. at 584-

85.   The facts in this matter are unlike Womack.                       Therefore, its

authority is not controlling.

      First,      the   animal    cruelty          statute     belies     the      State's

general     argument     that     double          jeopardy     attaches       to      civil

admissions.         N.J.S.A. 4:22-28 provides "[t]he indictment of a

person under the provisions of this article . . . shall not in

any way relieve that person from liability to be sued for the

appropriate penalties under [N.J.S.A.] 4:22-6."                        Second, in this

matter double jeopardy is implicated not because of the penalty

imposed,    but     because   P.H.    faced        criminal    charges,       which      the

grand jury concluded could not be sustained.                        After a downgrade

to lesser quasi-criminal offenses, the State decided to abandon

prosecution       and   dismiss      the        criminal     charges    in      favor     of

allowing a civil fee remitted to the NJSPCA.




                                            16                                     A-1345-13T4
       Following   our     detailed     review       of     the   numerous       arguments

advanced, we find unfounded the State's fears that extending

relief to the criminal records in this matter will result in a

flood    of   expungement      requests.            Based    on     the   unusual     facts

presented, we conclude P.H. was held to answer for an offense

with    no     resultant       criminal        or     quasi-criminal             conviction

consequences,      as    all   criminal    charges           were    dismissed.          The

petition      supported     expungement,            meeting       the     requisites      of

N.J.S.A.      2C:52-6(a).         The   State's          opposition        was    properly

rejected.      Accordingly, expungement of the criminal records was

correctly      ordered      and    that        order        appropriately         excluded

municipal court and NJSPCA records regarding P.H.'s admission of

responsibility under N.J.S.A. 4:22-26(a).                         See M.D.Z., supra,

286 N.J. Super. at 86 ("It is clear, from both the specific

provisions of the expungement statute and its general tenor,

that    the   Legislature      intended    it       to    encompass       only    criminal

charges and their consequences.").

       Affirmed.




                                          17                                       A-1345-13T4
