                        RECORD IMPOUNDED

                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                        SUPERIOR COURT OF NEW JERSEY
                                        APPELLATE DIVISION
                                        DOCKET NO. A-1359-13T1

                                       APPROVED FOR PUBLICATION
IN THE MATTER OF THE
                                               June 9, 2014
EXPUNGEMENT OF THE CRIMINAL
RECORDS OF G.P.B.                         APPELLATE DIVISION

____________________________________________________

          Submitted May 28, 2014 – Decided June 9, 2014

          Before Judges Fisher, Espinosa and O'Connor.

          On appeal from the Superior Court of New
          Jersey, Law Division, Warren County, Docket
          No. 11-EX-12.

          Richard T. Burke, Warren County Prosecutor,
          attorney for appellant State of New Jersey
          (Kelly Anne Shelton, Assistant Prosecutor,
          of counsel and on the brief).

          Krovatin   Klingeman,   LLC,  attorneys             for
          respondent   G.P.B.   (Gerald  Krovatin             and
          Ernesto Cerimele, on the brief).

    The opinion of the court was delivered by

FISHER, P.J.A.D.

    In this appeal, we again1 consider whether the so-called

"crime-spree" principle formulated in In re Fontana, 146 N.J.

Super.   264,    267   (App.   Div.    1976)    –    a   product    of   our

interpretation    of   an   earlier,   differently-worded      expungement

1
 The parties have alluded to a handful of unreported decisions on
this same subject rendered by this court within the last year.
statute,     N.J.S.A.    2A:164-28     –    has    application            to    a    petition

seeking expungement pursuant to the current statute, N.J.S.A.

2C:52-2(a), of a single judgment encompassing multiple crimes

committed on two different days.

       The   record     demonstrates       that,       on   September            16,    1999,

petitioner     pleaded     guilty      to      one      count        of        third-degree

conspiracy, N.J.S.A. 2C:5-2, and three counts of third-degree

making gifts to public servants, N.J.S.A. 2C:27-6(b).                                  At his

plea hearing, petitioner acknowledged he and another agreed to

make a monetary campaign contribution to one municipal official

on April 19, 1999, and to two other municipal officials on April

20, 1999, to secure their opposition to a municipal resolution.

This   illicit    agreement     also   included        petitioner's             promise     to

make    additional      campaign     contributions            once        the       municipal

officials    voted    against    the   resolution.             At    sentencing,           the

conspiracy conviction was merged into the convictions on the

three other crimes, and petitioner was sentenced to concurrent

three-year probationary terms conditioned upon a thirty-day stay

in the county jail; community service, fines and other penalties

were also imposed.

       On November 15, 2012, petitioner filed this action, seeking

expungement      of   records      relating       to    the     2001           judgment      of

conviction.      The State objected and, following argument, the




                                           2                                         A-1359-13T1
trial judge granted the application for reasons set forth in an

oral decision.        In appealing, the State argues that the judge

erred in granting expungement because "petitioner was convicted

of three separate crimes committed on two separate dates."

     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.2        The order under review was based solely on the

trial     judge's    interpretation   of    N.J.S.A.    2C:52-2(a),      which

states, in pertinent part, that a person's criminal records may

be expunged when that person

            has been convicted of a crime under the laws
            of this State and . . . has not been
            convicted of any prior or subsequent crime
            . . ., after the expiration of a period of
            10 years . . . .

            [Emphasis added.]

The statute imposes other requirements, but we need not consider

them because, in seeking reversal, the State argues only that

petitioner was convicted of "crimes" not "a crime" or, stated

another    way,     petitioner   failed    to   prove   he   had   not    been

convicted of any prior or subsequent crime because he pleaded


2
 It is not clear whether arrest records – generated through law
enforcement abuses – may be expunged as an equitable remedy.
See Bd. of Educ., Middletown Twp. v. Middletown Teachers Educ.
Ass'n, 365 N.J. Super. 419, 427-28 (Ch. Div. 2003).



                                      3                             A-1359-13T1
guilty to multiple crimes and each was prior or subsequent to

the other.

    Although the trial judge did not utter the words "crime

spree" in his opinion, we assume he applied this principle in

granting relief to petitioner.                   The "crime spree" principle was

originally enunciated in Fontana, and recently examined – in

connection with the current expungement statute – in In re Ross,

400 N.J. Super. 117 (App. Div. 2008).                    In his oral decision, the

judge   referred    to       another    recent         decision,      In    re    Criminal

Records   of   R.Z.,     429    N.J.   Super.         295    (App.   Div.       2013),   and

concluded that petitioner's crimes – participating in a multi-

act conspiracy over the course of two days to unlawfully obtain

a favorable determination on a pending municipal matter – were

"so closely tied together" as to permit the relief sought.

    We reject the trial judge's interpretation and application

of N.J.S.A. 2C:52-2(a).           In Ross, we held the statutory language

in question – a person who was convicted of "a crime" may obtain

expungement if he or she "has not been convicted of any prior or

subsequent     crime,"         N.J.S.A.      2C:52-2(a)         –     is    "clear       and

unambiguous    on      its     face    and       is    susceptible         of    only    one

interpretation,"         namely,       that           "the    words        'prior'       and

'subsequent' do not modify the term 'conviction[,]'" but instead

"modify the term 'crime,' which leads to the conclusion that if




                                             4                                     A-1359-13T1
two    crimes       are    committed      on       separate    occasions,          they     are

precluded from expungement regardless of whether the two crimes

carry a single sentencing date and therefore a single date of

conviction."         Ross, supra, 400 N.J. Super. at 122.                           We agree

with    that       interpretation.3            The    Legislature        used      the    word

"crime," not "conviction," in N.J.S.A. 2C:52-2(a), and did so in

the    face    of    our    interpretation           in   Fontana      of    the     earlier

statute, N.J.S.A. 2A:164-28, which used the word "conviction"

instead of "crime."              We assume the Legislature understood the

distinction when it selected the language of the current statute

– action very likely intended to avoid the application of the

amorphous "crime-spree" concept in future matters – and we are,

therefore,      bound      by    the   Legislature's       unambiguous            command    in

such matters.

       We lastly note that in a more recent unpublished opinion,

we    again    adhered      to    Ross's    interpretation          of      the    statutory

language      in    question      when    reversing       an   order     that      permitted

expungement         of    criminal       records      where    the       petitioner         was

convicted of drug crimes that occurred five days apart.                               We are

3
 We do not agree with the trial judge's apparent determination
that R.Z. supports his application of the so-called "crime
spree" principle to petitioner's multiple crimes over two days.
In R.Z., we adhered to Ross in holding that a petitioner had not
sustained his burden to prove "he committed his crimes
concurrently, and not on 'separate occasions.'" 429 N.J. Super.
at 297 (quoting Ross, supra, 400 N.J. Super. at 122).



                                               5                                     A-1359-13T1
mindful that the Supreme Court has granted certification in that

matter, In re Expungement Petition of J.S., __ N.J. __ (April

11,   2014),    and   may   soon    either       endorse     or   reject     Ross's

interpretation.       Until instructed otherwise, however, we will

continue   to     adhere    to     Ross       because   we    agree    with      its

interpretation of the statute.                In applying Ross's holding, we

must set aside the expungement order in question.                     In entering

his guilty plea, petitioner admitted the commission of crimes on

April 19 and April 20, 1999.              N.J.S.A. 2C:52-2(a) only permits

expungement when that relief is sought by a person who "has been

convicted of a crime," not crimes.4

      Reversed.




4
 Although our decision reverses the expungement order and would,
therefore, ordinarily deprive petitioner of the confidentiality
of his 2001 crimes previously granted by the trial court, we
have nevertheless kept petitioner's identity confidential in
this opinion in light of the possibility that the Supreme
Court's decision in J.S. may prove favorable to him. We do not
mean to suggest, however, that our judgment is stayed pending
further proceedings, if any, in the Supreme Court. We intimate
no view whether a stay should be entered if petitioner seeks
review in the Supreme Court.



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