                     NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION
  This opinion shall not "constitute precedent or be binding upon any court."
   Although it is posted on the internet, this opinion is binding only on the
      parties in the case and its use in other cases is limited. R.1:36-3.



                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-0481-16T2


IN THE MATTER OF THE
EXPUNGEMENT OF THE
CRIMINAL RECORDS OF
MICHAEL J. DEROSA.

_______________________________

           Submitted May 25, 2017 - Decided June 26, 2017

           Before Judges O'Connor and Mawla.

           On appeal from Superior Court of New Jersey,
           Law Division, Mercer County, Indictment No.
           02-11-1500.

           Michael J. DeRosa, appellant pro se.

           Angelo J. Onofri, Mercer County Prosecutor,
           attorney for respondent State of New Jersey
           (Amanda E. Nini, Assistant Prosecutor, of
           counsel and on the brief).

PER CURIAM

     Petitioner Michael J. DeRosa appeals from an October 20, 2016

order denying his application for expungement pursuant to N.J.S.A.

2C:52-2(a)(2).     We affirm.

     The following facts are taken from the record.                   In 2002,

petitioner worked in a group home where he was responsible for the
care of a severely disabled adult patient.               The patient repeatedly

wandered outside of his room.               On one occasion, petitioner tied

the patient's wrists above his head and to the bed, where he hung

under the pull of his body weight for over twelve hours, causing

severe nerve damage.             The patient also suffered burns when he

slipped from the bed and lay against a nearby heater, unable to

move away because he remained tied. When another worker discovered

the patient the next morning, petitioner denied responsibility for

his actions and       refused to obtain medical treatment for the

patient.    He also downplayed the patient's injuries as illness-

related, when queried by the patient's mother.

      On March 4, 2004, a Mercer County jury convicted petitioner

of   criminal    restraint.1           He   was   sentenced   to   six    months   of

incarceration, followed by four years of probation, ordered to

perform two hundred and fifty hours of community service and pay

fines and fees totaling $1155.                  Petitioner served his custodial

sentence,       satisfied        his    monetary      and     community     service

obligations, and was discharged from probation early for good

conduct on July 26, 2007.              He subsequently relocated to Florida,

where he resided with his parents and completed his undergraduate

and law degrees.      Petitioner was also employed while in school.


1
       On appeal,           we    reversed        petitioner's     conviction      for
endangerment.

                                            2                               A-0481-16T2
Upon completing law school, he applied for admission to the Florida

and South Carolina Bars.   However, both applications were denied

because of petitioner's criminal record.

     As a result, petitioner filed an application on May 12, 2016,

seeking to expunge his criminal record, including the following:

a July 9, 2001 municipal charge for simple assault and harassment,

which had been dismissed; the conviction for criminal restraint;

and a February 4, 2006 arrest and guilty plea to a fighting/

misbehaving municipal ordinance, incurred while on probation.

After a hearing, the trial judge denied petitioner's application.

     On appeal, petitioner asserts the following arguments:

          I.    MISAPPLICATION/MISINTERPRETATION OF THE
          LAW

                A.   THE TRIAL COURT MISINTERPRETS
                AND MISAPPLIES THE LAW SET FORTH IN
                N.J.S.A. 2C:52-26(a)(2) AND THE
                ACCOMPANYING GUIDELINES SET FORTH
                BY THE NEW JERSEY SUPREME COURT IN
                THE CASE IN RE KOLLMAN.

                B.    THE TRIAL COURT ERR[ED] BY
                IMPROPERLY MINIMIZING, MISUSING,
                AND MISCHARACTERIZING THE PETI-
                TIONER'S SATISFACTORY PERFORMANCE
                OF COMMUNITY SERVICE AS SELF-
                SERVING.

                C.    SATISFACTION OF THE KOLLMAN
                COURT FACTORS THAT ARE TO BE WEIGHED
                AND BALANCED NEED ONLY BE SATISFIED
                TO ORDINARY NOT AN EXCEPTIONAL
                LEVEL.


                                 3                          A-0481-16T2
     D. LACK OF COMMUNITY SERVICE IS NOT
     ONE OF THE DOMINANT KOLLMAN COURT
     FACTORS NOR IS IT THE BASIS FOR A
     DENIAL OF EXPUNGEMENT AS LISTED IN
     N.J.S.A. 2C:52-14.   ALTERNATIVELY,
     PERFORMANCE OF COMMUNITY SERVICE IS
     ONLY    A     POSITIVE     ENHANCING
     CONSIDERATION AND THE ABSENCE OF
     WHICH CANNOT BE VIEWED IN A NEGATIVE
     LIGHT OR SERVE TO NEGATE OR OVER-
     WHELM THE EXISTENCE OF THE DOMINANT
     GUIDING BALANCING FACTORS OF THE
     KOLLMAN COURT.

II. ABUSE OF DISCRETION AND VIOLATIONS OF DUE
PROCESS.

     A.   THE TRIAL COURT'S RELIANCE ON
     ITS "SENSE" OF THE PETITIONER'S
     ACCOUNTABILITY IS MISGUIDED AND ITS
     FAILURE TO ACKNOWLEDGE AND UTILIZE
     SEVERAL    REPORTS    FASHIONED  BY
     INDEPENDENT LICENSED PSYCHOLOGISTS
     WHEN   FORMING   THAT    OPINION IS
     INAPPROPRIATE AND AN ABUSE OF
     DISCRETION.

     B.    THE TRIAL COURT ABUSES ITS
     DISCRETION    IN    REQUIRING    AN
     ADMISSION   OF   GUILT   FROM   THE
     PETITIONER WHICH IS NOT GROUNDS FOR
     DENIAL OF AN EXPUNGEMENT PETITION
     UNDER N.J.S.A. 2C:52-14.

     C.   THE TRIAL COURT VIOLATED THE
     PETITIONER'S DUE PROCESS RIGHTS IN
     ALLOWING UNSUBSTANTIATED EVIDENCE
     NOT FOUND IN THE RECORD TO PROVIDE
     THE BASIS FOR ITS FACTUAL FINDINGS
     AND BY NOT REQUIRING THE OBJECTING
     PARTY TO PROVIDE A REASONABLE BASIS
     FOR ITS OBJECTIONS.

     D.    THE TRIAL COURT ERR[ED] BY
     FAILING TO SHIFT THE BURDEN TO THE

                      4                         A-0481-16T2
                 STATE TO PRODUCE BY THE PREPOND-
                 ERANCE OF THE EVIDENCE A NEED FOR
                 THE AVAILABILITY OF THE PETITION-
                 ER'S CRIMINAL RECORD.

           III.   LEGISLATIVE INTENT AND PUBLIC POLICY
           VIOLATIONS.

                 A.    A DIRECT COMPARISON OF THE
                 KOLLMAN   AND  PETITIONER'S   CASES
                 UNDER THE PUBLIC INTEREST BALANCING
                 EVALUATION DEMONSTRATES THE TRIAL
                 COURT['S] CLEAR AND PLAIN ERROR IN
                 DENYING THE PETITIONER'S PETITION
                 ACCORDING TO THE LEGISLATIVE INTENT
                 AND AS A MATTER OF PUBLIC POLICY.

                 B. THE TRIAL COURT FAILED TO ADHERE
                 TO THE LEGISLATIVE INTENT OF THE
                 EXPUNGEMENT   LAW  UNDER   N.J.S.A.
                 2C:52-32 TO PROVIDE RELIEF TO THE
                 REFORMED OFFENDER WHO HAS DISASSO-
                 CIATED FROM UNLAWFUL ACTIVITY.

     Relevant to the issues on appeal, petitioner claims the trial

judge improperly weighed the factors set forth in N.J.S.A. 2C:52-

2(a)(2) and misinterpreted the Supreme Court's holding in In re

Kollman,   210   N.J.    557    (2012).       Following   our   review     of   the

arguments presented in light of the record and applicable law, we

find no abuse of discretion and affirm.

     Our   review   of    expungement         determinations    requires     "[w]e

review the [trial] court's balancing of competing factors for

abuse of discretion."          Id., supra, 210 N.J. at 577 (citing In re

LoBasso, 423 N.J. Super. 475, 496 (App. Div. 2012)).               "Under that

standard, a reviewing court should not substitute its judgment if

                                          5                                A-0481-16T2
the   trial    court's    ruling   was   within   'a   range   of   acceptable

decisions.'      However, the trial court's interpretation of the law

is not entitled to special deference.             We review legal questions

de novo."      Id. at 577-78 (citations omitted).

      Pursuant to N.J.S.A. 2C:52-2(a)(2), a court may grant a

petitioner expungement when:

              at least five years has expired from the date
              of . . . conviction, payment of fine,
              satisfactory completion of probation or
              parole,   or   release   from   incarceration,
              whichever is later; the person has not been
              convicted of a crime, disorderly persons
              offense, or petty disorderly persons offense
              since the time of the conviction; and the
              court finds in its discretion that expungement
              is in the public interest, giving due
              consideration to the nature of the offense,
              and the applicant's character and conduct
              since conviction.

      "In essence, expungement under the [] 'public interest' prong

initially requires three things: the passage of five years; no

additional convictions; and a finding that expungement is in the

public interest."        Kollman, supra, 210 N.J. at 571.      The applicant

bears the burden of proving the factors for expungement.               Id. at

572-73.

      To determine whether expungement is in the public interest

"courts are to consider and balance the 'nature of the offense'

and the 'applicant's character and conduct since conviction.'"

Ibid.     "The 'nature of the offense' encompasses undisputed or

                                         6                             A-0481-16T2
proven facts about the crime and its commission.             That certainly

includes    basic    information   about   the   definition,    grade,   and

elements of an offense."        Id. at 574.      "[T]herefore, judges may

also consider details about what the petitioner did, how and with

whom he acted, and the harm he may have caused in connection with

the offense of conviction."         Id. at 574-75.     "In short, courts

examining how the 'nature of the offense' affects the public

interest have wide latitude."       Id. at 575.

     To    determine    an   applicant's   character   and   conduct   since

conviction, "courts may examine an applicant's performance while

in jail or on probation."       Id. at 576.

            During and after that time, courts may also
            consider whether an applicant

                    has engaged in activities that have
                    limited the risk of re-offending, or
                    has    avoided    activities    that
                    enhanced   the    risk   [including]
                    whether a petitioner has obtained
                    job training or education, complied
                    with other legal obligations (such
                    as child support and motor vehicle
                    fines), and maintained family and
                    community ties that promote law-
                    abiding behavior, as well as whether
                    the    petitioner     has    severed
                    relationships with persons in the
                    criminal milieu.

            Facts related to an arrest that did not result
            in conviction, or to a dismissed charge, may
            also offer insight into an applicant's
            character and conduct.    [In re Lobasso, 423
            N.J. Super. 475, 576 (2012).] To assess the

                                     7                              A-0481-16T2
             public interest . . . courts [may] consider
             conduct before the time of conviction as well,
             to gauge whether the offense was aberrational
             or part of a "pattern of disrespect for the
             law or a threat to public safety." [Id. at
             495.]

                  . . . .

             In practice, trial judges will balance the
             above   factors   as  they   decide   whether
             expungement serves the public interest in a
             particular case. In doing so, they weigh the
             risks and benefits to the public of allowing
             or barring expungement.    The focus, as the
             statute says, is on the "public interest,"
             which is broader than the personal desires of
             an applicant although the concepts can often
             be intertwined.

             [Id. at 576-77 (emphasis added) (citations
             omitted).]

      Here, because there is no dispute that petitioner met the

first two statutory factors, we address his claims the trial judge

abused her discretion in weighing the third public interest factor.

Petitioner asserts he met the public interest factor because he

volunteered for work while in prison, completed his community

service at a church, overcame a learning disability to earn his

undergraduate and law degrees, and cared for his ailing parents.

He   also    argues     the    evidence    proves     he   will   not     re-offend.

Specifically,      he     highlights       the      lack   of     other     criminal

convictions, a character reference letter from his sister, a mental

health      evaluation    he    obtained      for    purposes     of    seeking     an


                                          8                                  A-0481-16T2
accommodation to take the Florida Bar Examination, and two letters

from   a    mental     health   counselor      and   a   neuropsychologist       for

admission to the South Carolina Bar.

       Petitioner likens his case to the facts in Kollman and argues

the trial judge here failed to consider evidence of his good

character and conduct since the conviction.                     Specifically, he

points     to    his   completion   of   two    hundred   and    fifty   hours   of

community service as a part of his sentence and "over 120 hours

of pro bono work, while in law school, and one year of volunteer

work done at the Florida State University Public Interest Law

Center."        Petitioner also challenges the trial judge's finding he

lacked remorse and accountability for his actions, claiming the

judge ignored his expressions of remorse during his testimony at

the expungement hearing.

       Our review of the trial judge's findings lead us to conclude

she did not abuse her discretion.              First, the record demonstrates

the judge considered the nature of petitioner's offense and its

gravity.        She recited petitioner's criminal history, including his

arrest and guilty plea to a municipal ordinance while on probation.

She also considered and rejected petitioner's assurances he would

not re-offend because he did not intend to return to the health




                                         9                                A-0481-16T2
care field again,2 noting there are no conditional expungements

under the statute.

     Second, the judge acknowledged the strides petitioner made

in obtaining an education for the stated purpose to "give back."

She further addressed petitioner's pro bono work during law school

and the difficulties a criminal record imposes on the ability to

obtain     employment.    However,    the   judge   noted   petitioner's

education materially benefitted him and his family, not the public

interest.

     This finding dovetailed with the judge's finding petitioner

lacked remorse.     The judge traced a common theme, beginning with

the presentencing report, which noted his intent to appeal the

conviction.     The judge interpreted this as an "air of, I'm sorry

for what happened but [I am] not taking responsibility for what

happened." The judge found the arguments raised in the expungement

petition bore the same "air," noting petitioner continued to

deflect responsibility by arguing a lack of evidence to support

the conviction.      The judge found this demonstrated a lack of

remorse.     Referring to the facts underlying his conviction for


2
    We note, notwithstanding petitioner's assurance to remain out
of the health care field, his intent to become an attorney at law
will, by necessity, expose him to a similarly situated subset of
vulnerable individuals, whether it be through pro bono service or
in   the   representation   of   clientele   enduring   difficult
circumstances.

                                 10                              A-0481-16T2
criminal restraint, she stated:          "And when you say there's no

evidence for 12 hours, you don't remember that.        Well it's in the

Appellate Division's decision because they talk about the evidence

that was presented at trial."

     Having considered petitioner's claims on this record, we are

unable to conclude the judge abused her discretion in weighing the

statutory factors.       The record supports the judge's findings

petitioner's conviction was not, as the Kollman Court stated,

merely "a minor brush with the criminal justice system."         Kollman,

supra, 210 N.J. at 568.    The gravity of petitioner's offense, his

disruptive conduct during probation, and his attitude demonstrate

otherwise.

     Lastly, the trial judge properly exercised her discretion in

weighing evidence purporting to corroborate petitioner's character

and conduct since his conviction.        As she noted, the mental health

evaluations   attached    in   support    of   petitioner's   expungement

application do not address his conduct, insight and remorse over

his past conduct.    Instead, the documents address petitioner's

mental health condition in connection with a separate assault he

suffered, a request for clemency, and a request for a testing

accommodation for the Florida and South Carolina Bar examinations.

These materials are irrelevant to an evaluation of his character

and conduct as they relate to his conviction.         Moreover, a review

                                   11                             A-0481-16T2
of the sentencing and expungement hearing transcripts demonstrate

the gravamen of petitioner's testimony was not to express remorse

to the victim and his family, but instead remorse over the impact

petitioner's wrongdoing has had on himself, his family, and his

future.

     On the matter of character and conduct, petitioner likens his

circumstances to those in Kollman, but we fail to see any analogy.

Indeed, the Kollman Court noted:

          Kollman offered proof that he completed
          college and received a Bachelor of Science
          degree from the Richard Stockton College of
          New Jersey in May 2009.     He also certified
          that he worked full-time while in school and
          had become active in various community service
          projects.

          Petitioner also submitted twenty-one letters
          to the court. His employer for sixteen years
          described him as a hard-working leader and a
          role model to others. The employer credited
          Kollman for accepting responsibility and
          taking steps to improve himself and deter
          others after his conviction.     The District
          Director for the Boy Scouts of America praised
          Kollman and his family for hosting annual toy
          drives to help underprivileged families and
          teenagers   with   alcohol   and  drug   abuse
          problems. Kollman also served on the district
          board of directors of a scholarship committee
          for scouting. Several other community groups
          submitted letters as well.       In addition,
          various attorneys, friends, and family members
          wrote about Kollman's strong character and
          personal growth in recent years.

          In Kollman's certification, he added that he
          had had no trouble with the law since his

                               12                          A-0481-16T2
          conviction -- not even a speeding ticket.
          However, he explained that because of his
          criminal record, he could not teach a boating
          and safety certificate class, as he had done
          previously for three to four years, could not
          help coach wrestling at high school, as he had
          done before as well, and could not accept an
          offer to work with the Big Brothers Big
          Sisters program as a volunteer.

          [Id. at 564-65.]

     Although    we   do   not   require   every   applicant   seeking

expungement to replicate the exact facts in Kollman, the facts

here are inapposite to those in Kollman, where the petitioner's

post-conviction character and conduct exuded a singular aim of

service to others.    Petitioner's conduct falls short of the mark,

and is not outweighed by his limited pro bono employment during

law school.   Instead it demonstrates, as the Kollman Court stated,

a motivation to serve his narrower "personal desires." The balance

of petitioner's arguments are without sufficient merit to warrant

a discussion in a written opinion.     Rule 2:11-3(e)(1)(E).

     Affirmed.




                                  13                           A-0481-16T2
