Common Reasons Expungements Are Not Granted
The most common reason is what we call a DeMarco, which is actually the name of a case. A DeMarco violation happens when someone does not disclose all prior criminal charges in the expungement petition, although that’s no bar to the expungement; they will just have to re-file all the paperwork and disclose the information. Expungements are usually denied when someone does not fit the statutory criteria, such as because they had two felony convictions or one felony conviction and three disorderly persons convictions. If they got into PTI on a felony, successfully completed it and then were charged with a disorderly persons offense, the PTI case is expungable but the disorderly persons offense won’t be because of their participation in PTI; in other words, they’ll be denied an expungement because it didn’t fit the statute.
There is a general catchall phrase that the public’s need for these records outweighs the petitioner’s interest in getting an expungement, although that has only come up once as a reason the prosecutor objected; it was in a murder case and I had represented a police officer charged with murdering his wife and I got the charge dismissed because his wife had actually died from a heart attack, or natural causes. This was before trial, so my client was reinstated as a police officer with all of his back pay although he later wanted the charge expunged from his criminal history.
I moved to expunge it but the prosecutor objected, saying the public’s need to have those records outweighed my client’s interest in getting the expungement. Needless to say, after a very heated but respectful argument in court, the judge saw it my way and granted the expungement. I personally think the expungement will usually go through if there is no statutory bar. Of course, being ineligible to having a record expunged can be difficult to deal with, but even that’s not impossible and I have been successful with this.
For example, if someone has two felony convictions, neither will be expungeable because there were two, but we can consider a post-conviction relief application if there are grounds for it. For example, if the attorney who represented the person 12 years earlier on these two separate crimes advised them to plead guilty because in 10 years they could expunge the charges, they will have given their client bad and completely incorrect advice, since felony charge cannot be expunged. I have been successful in using an ineffective assistance of counsel post-conviction relief application to prove to the prosecutor that my client’s former attorney gave them bad information and I was able to get one of the felonies thrown out. And because it was then a dismissal, I could go back and expunge one felony conviction and the dismissal at the same time.
I have a case going on right now from the late 1970s. My client came in with four felonies, he got PTI for three, but with the fourth, their attorney said to not worry about it because, once he had done PTI, he just had to wait 10 years to be able to expunge everything, which is untrue. Someone can only expunge those dismissed via PTI, but not the other felony conviction, so I am currently trying to overturn one conviction, which can be very difficult, although not impossible.
Does New Jersey Have a Certificate Of Actual Innocence?
No, we have certified dispositions and judgments of conviction; if someone is found not guilty in a case, there will obviously not be a conviction, but documents are generated by the court, even if it’s just a disposition sheet stating, “finding not guilty.” Municipal courts do the same thing, and someone can get a certified disposition, which is a form the court provides, stating the charges when they were charged, and the not guilty finding and the date.
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