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New Jersey Expungements Attorney


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Expungements Lawyer in New Jersey

An Overview Of Expungement

In all of New Jersey, if you are arrested or taken into custody for a criminal offense, or even for suspicion of criminal activity, an arrest record will be created. Whether the charges are dropped or not, whether you are found guilty or not, the record can be available to prospective employers and others for years. You may have difficulty getting credit, finding an apartment, or even purchasing insurance.

Hiring a criminal defense lawyer to help you with expungement can prevent access to your criminal record, allowing you to treat the event as if it never happened. Expungement is a complicated process, though, and there are specific rules to determine whether you qualify. It’s really critical that you work with an experienced attorney who understands the law and process governing expungement. We can help.

What Is The Definition Of Expungement?

The definition of expungement under New Jersey statutes is the extraction and isolation of all records on file within any court, jail, correctional facility, law enforcement department or criminal justice agency concerning a person’s detection, apprehension, arrest, detention, trial or disposition of a criminal offense within the criminal justice system. What this means is, expungement hides the person’s criminal record, so that if someone ran that person’s background, they won’t be able to see those charges, as if it never happened.

Expungements are as common as people want them to be; as a way to clear someone’s criminal history they are a great tool. I handle a large volume of expungements because, it helps people find jobs or at least help them not be rejected from a job, an apartment lease and so forth.

How Does an Expungement Differ From Having a Record Sealed?

Expungement is the isolation and extraction of the record, meaning it would be as if the incident never occurred, whereas sealing a record is just a court order stating that no one can get their hands on the police reports to see what happened; it does not seal the conviction. If someone was convicted of a crime and the record was sealed, when someone looked up their criminal history, they can see the conviction but not the police reports, whereas if they ran their criminal history after an expungement, there will be no identifiable record; they will still exist, but no one would be able to see them.

In New Jersey, there is a misconception that an expungement destroys the paperwork and police reports, but everything still exists; they are just moved to another location within the criminal justice system, so that no one can see them.

Who Is Eligible to File for an Expungement?

Anyone can file for expungement if they had been arrested, charged, convicted, found not guilty or if the charges were dismissed, provided they met certain statutory criteria; they can only expunge one adult felony conviction and up to three disorderly conduct convictions, although they can expunge as many local ordinance violations as they wanted. They must also follow certain statutory criteria to determine their eligibility for expungement; not all felony convictions can be expunged; murder or aggravated sexual assault convictions are ineligible, for example. However, many convictions are eligible, and your attorney can tell you which one are.

How Often Are Expungements Actually Granted?

I have never had an expungement denied as a final ruling of the court, although prosecutors have objected to some; if the attorney knows what they are doing and they understand the expungement statutes, most will be granted. The process is like putting together a puzzle, so if everything is disclosed and the person isn’t statutorily barred, the expungement should be granted. The only issue of chance is if someone tried to do an early pathway expungement, meaning they had a felony conviction and wanted to expunge it more than five years from the date they completed their sentence but before the actual tenure for waiting. That will depend on the judge, who will have to find the expungement to be in the public’s interest. If the person is not statutorily barred from getting the expungement, then the expungement should go through.

Can You Assist in Getting Charges Expunged From Another State?

New Jersey can only expunge New Jersey convictions, arrests, and charges, so we can’t expunge an out-of-state conviction, although as part of my service as a very good attorney for my clients, I will contact an attorney from one of the organizations I am affiliated with, to see if they can expunge the out-of-state charges. We will discuss the fact that, in New Jersey, the person only gets get one felony conviction expunged, so if they have a conviction in Missouri and another in New Jersey, and both were adult felonies; they couldn’t expunge the New Jersey conviction because of the out-of-state conviction. I would speak with the Missouri attorney and ask how we can work this out; perhaps in Missouri they can do a post-conviction relief application to amend the charge to a misdemeanor.

Why Should Someone File For Expungement?

A person can file for an expungement just to give them a little peace of mind; about 95 percent of those who come to me about expungements do so for employment purposes; to get a better and higher paying job. For that reason alone, getting a record expunged is very important; if you need to make more money for whatever reason, it’s important to have those charges removed, so they don’t show up on background checks. It’s also important for people who rent, because most landlords do background checks these days and they often won’t rent to someone with a criminal history. Your criminal history may not reflect the person you are now, and you may be embarrassed and not want people to see it.

Does Having an Arrest on One’s Record Affect Financial Aid and Getting Into School?

For the most part, an arrest record won’t affect entry into a school or a financial aid application, but a conviction will. Also, many people think a juvenile charge when they were under 18 will automatically be expunged, but that’s not true; their criminal history is visible until they have it expunged, so things like underage possession of alcohol, underage gambling, simple assaults and things of that nature are all part of their record, even if they happened as a juvenile. However, details like police reports and so forth can’t be obtained by the general public, just the conviction, unless they make an application with the court.

Of course, anyone can make a request for the records concerning adult conviction under the Open Public Records Act, or OPRA, so they can get police reports and see what that person had done.

Can Someone Get DWI Charges Expunged?

New Jersey DWIs are not expungable because they are considered a traffic offense, not a crime and in New Jersey only criminal offenses can be expunged. Someone’s driving history probably won’t impact their ability to get employment, unless they were applying for a driving job. A drunk driving conviction can’t be expunged. In addition to traffic violations, it is my understanding that federal charges are also not expungable, including charges with the military.

Does an Expungement Restore the Right to Have Firearms?

In the law, certain felonies preclude someone from having the right or the ability to possess a firearm, but if the felony is expunged, there will be no absolute bar to getting a firearms ID card or a weapon. Although I often remind clients that if they have a conviction expunged and apply for a weapons permit, they should be prepared, because the local police department may deny the permit, because they can still see the record, and they may have to file an appeal with the Superior Court to get the weapon or permit.

At that hearing, they should be prepared; they should have a lot of character letters, so that we can pick a few of the best people to come in and testify. Most likely, they will have to go and get a psychological evaluation and have a psychiatrist or a psychologist testify that the person was not a threat to themselves or others and that it would be entirely appropriate for them to have a weapon.

What Is The Expungement Process For A Criminal Charge?

The process starts with filing a verified petition, which means papers filed with the court, with the person’s identifying information, details of the charges and the request for expungement it expunged. It’s verified because the petitioner signs off to verify that they had no prior felony expungements and no pending criminal cases. After filing, a hearing will happen approximately 45 days later, at which the judge will then sign an order to hear the case on a certain date and the attorney will send everything to all interested agencies—meaning law enforcement or criminal justice agency involved with the arrest, such as the local municipal court, police departments, the jail, the county prosecutor, the probation department, if applicable, and the New Jersey Attorney General.

Provided no one objects at the hearing, the judge will sign the order at the hearing and send it to the attorney, who will then send it back out to all of those agencies again, so they can correct their records and we will eventually get a letter from the New Jersey State Police saying the Identification Bureau had corrected its records. And, at that point, the expungement is done. If there are no problems or objections, the process takes about six to nine months from start to finish and most of it is just paperwork.

Where Is the Motion Filed?

I strongly recommend having an attorney do this, because they would need to make sure they had dotted all their I’s, crossed all their T’s and put all the information in the petition that is required by statute. The prosecutor handles expungements on behalf of the state of New Jersey, and I see a lot of people in court whose petition has been objected to by the prosecutor because they had forgotten to put in one of their other arrests, charges or convictions in there. It may be a very small charge, but it’s necessary to put in all of your criminal history, including out-of-state charges into the record.

The person doesn’t need to provide fingerprints; those are only needed to get their criminal history, so as to make sure they disclosed everything. The person can get them done as a side note, to make sure they have everything, by going to the New Jersey State Police website, going into the fingerprint section and setting up an appointment, at which time their fingerprints will be digitally scanned and the state police will send them their criminal history within about four weeks.

Is Expungement an Affordable Process?

The current cost to file an expungement is $75, but there are other associated costs as well, including the costs of sending the order to all of those agencies twice each via certified mail, return receipt requested, which is about $7.80 each. There are also photocopying costs and so forth.

That’s not to say it isn’t affordable; while I don’t really disclose what I charge, but if it was a regular “plain-vanilla statute” meaning the person had waited for the full statutory waiting period and there were no other charges that may bar the expungement, it would cost a $2000 fee plus the costs of about $300. The petition is four pages long, the order for hearing and the actual order are two pages long each, so there isn’t a ton of photocopying and paper.

If the person did an early pathway expungement, the fee is more like $5,000 to put it together and then there would be an additional fee if I have to argue in court. The petition that is normally four pages long is still four pages long, but with about 100 pages of attachments added, including an affidavit by the client showing why it was in the public interest to have the charges expunged, about 20 character letters showing the person as an upstanding citizen of good character, their tax returns for the last five years and property tax receipts to show that he was working and paying his taxes, and five newspaper articles showing the person had done volunteer time at soup kitchens and a certificate from the Purple Heart showing that he donated one of his cars—things like that, making the petition much more voluminous.

Regarding whether this is affordable, let’s just say hypothetically that an attorney charges $2,000 to do it and weighs that against the person’s ability to get a job that makes $10,000 more per year; in my opinion it’s worth every penny. I can say with 100 percent confidence and belief that it is absolutely worth it.

Which Types of Criminal Records Will New Jersey Expunge?

In New Jersey, felonies or criminal offenses, disorderly and petty disorderly persons offenses, which are like misdemeanors, and almost all ordinance violations can be expunged. New Jersey has a list of felonies that are not expungable and they include the most serious crimes like criminal homicide, death by auto, kidnapping, sexual assault, and things of that nature, because the legislature has determined that such serious crimes are too serious to be expungable.

If Arrested for a Charge That Was Previously Expunged, Is It a Second Offense?

This is a phenomenally philosophical question, although it would not be in the eyes of the law because the previous record had been expunged, which is almost like it never happened. That said, for sentencing purposes, the New Jersey statute says, “[E]xpunged records or sealed records under prior law of prior arrests or convictions shall be provided to any judge, County prosecutor, probation department, or the attorney general when pre-sentence reports for purposes of sentencing arise.”

A prosecutor will argue that they had a prior conviction, even though it was expunged, so the person is a second offender, but the defense attorney will argue that the charge had been expunged so the previous incident never happened. I don’t think there are any reported cases on it, but the judge will probably find that the person is a second offender, since the expungement statute specifically says that expungements are revealed for the purposes of sentencing.

Does an Expungement Remove the Arrest Record if the Case Never Went To Trial?

There will be a record of the person being arrested and the record of an arrest for a non-serious crime stays with the police department and the municipal court, including fingerprint information, which will also go into the “National Criminal Information Center” or NCIC, where the arrest can also be seen, even if the charges are dismissed the next day.

Can Someone Have Multiple Arrests or Charges Expunged?

Someone can be arrested 100 times and, as long as they are found not guilty, they can get all of those arrests expunged; they can either expunge them all at once, or each time they were found not guilty. Any arrests that did not result in a conviction can be expunged, with no limit.

Are Certain Types of Convictions Easier to Have Expunged Than Others?

It’s not a matter of ease, but whether or not the person was statutorily barred from doing so, usually meaning someone with too many felony convictions or too many disorderly person convictions won’t be able to get them expunged and they must also abide by the waiting periods before they can file for an expungement.

However, when it comes to ease, a low level offense like harassment is just as easy to expunge as an aggravated assault for punching someone in the face, because the statue is not set up to differentiate between the levels. There is a timeframe difference, so they will have to wait 10 years from completion of their sentence before they can file to have a felony expunged, although that can be reduced to five years if the petitioner can prove it’s in the public interest to do so.

That is called early pathway expungement and for disorderly persons and petty disorderly persons offenses people have to wait five years from the date they completed their sentence to do an expungement while those with local ordinance convictions have to wait for two years. On the other hand, there is no waiting period if a case had a not guilty verdict or outright dismissal, so the expungement can be filed right away. If they went into a course of supervisory treatment like the pre-trial intervention program in superior court, or a conditional discharge for drugs in municipal court or a conditional dismissal for other offenses in municipal court, once they completed that program, they can file for an expungement after six months.

Someone dealing with a pending criminal matter can’t have anything expunged; they have to wait until their current case was complete, and the petitioner will have to sign a verification stating they did not have any pending criminal charges when they were filling for the expungement.

Some Misconceptions Regarding Expungement

The sad truth is that people believe misinformation given by their lawyer, that their case or charge will automatically be expunged, so they don’t have to do anything, which is untrue in New Jersey. A case can be dismissed, but it’s not the same as an expungement. For example, someone charged with simple assault can go to court and have the charge dismissed by the judge, but if someone ran their criminal history, the cat will be out of the bag; it’s a misconception to think that a charge that was dismissed will automatically be expunged.

Another misconception is that an expungement means all records are destroyed, like they go into a shredder or incinerator, while New Jersey maintains those records to be used in certain limited statutory circumstances in the future. For example, if the person got arrested, charged and then participated in and successfully completed a pre-trial intervention, or PTI, which is a diversionary program, they can expunge it so that it could not be seen on the person’s criminal history. But 15 years down the road, if they are charged again, they may think the expungement means they can apply for PTI again, which isn’t true, since they can only receive PTI once. The records would still exist—it’s just that the general public can’t see it, but the court can.

Can a Police Officer See the Record During a Stop?

No, the police officer can’t see the record unless they did something shady; in the mobile data terminals in their car at the scene, they can usually just see if the person’s driving privileges are in can’t access anyone’s criminal history at the scene; they would actually have to go back to the station and log into their desktop computer.

Do Some Charges Fall off After Some Time?

Criminal offenses in New Jersey are like crazy glue; they stick. Once someone is charged with a crime, it will never just fall off or go away, which is why I find it somewhat upsetting when people tell me their attorney told them to plead guilty because after five years the charge would be expunged automatically. There’s no such thing as an automatic expungement in New Jersey; charges stay on the person’s record until they petitioned the Superior Court of New Jersey for an expungement.

Can Someone Apply for a Job After Filing for Expungement?

If someone applies for an expungement and they want a particular job with a company they know won’t hire them with a conviction, they should not apply to that company until the expungement goes through because once they saw the charges, they can’t un-see them and they will still know about it even though it was expunged.

Is Someone Required to Tell a Police Officer About an Expungement?

My advice to anyone is, if a police officer asks whether they have been convicted, they shouldn’t answer the question, even if the officer chastises them and claims they’re obstructing justice because they never have to answer that question, but the honest answer to that question after an expungement is no. Let’s suppose they had expunged a conviction and then applied for a job with someone other than law enforcement or the judiciary; if the application asks if they’ve been arrested, charged or convicted of a crime, the truthful answer to all of these questions would be no.

There is another reason to not answer at all. I have seen situations in which the police officer asks someone they were investigating whether they had ever been arrested, and the person said no. But because the officer later found out they had actually been charged, they can claim the person lied to them, which means I have to get involved and tell the police officer it was not a lie, because after someone gets a record expunged, they can honestly say no.

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.

FAQ: Should Someone Handle Their Own Expungement Or Hire An Experienced Attorney?

Technically, anyone can handle an expungement on their own. But I have found that most people who do it on their own don’t word the order properly, they don’t get all of the necessary information in the petition, or they don’t serve all the proper agencies, which triggers an automatic objection from the prosecutor, requiring them to file it all over again. In my experience, when people who have tried to do it on their own come to see me, it’s because the prosecutor would not let things go through, so I take over and make sure everything is done properly. It’s not a tedious process; it’s just a very fact-sensitive process, meaning we have to make sure to dot all the Is, cross all the Ts, and make sure that everything required in the paperwork is there, based on the statute.

To someone who does not practice law, reading a statute may be confusing, kind of the way a car insurance policy is worded; it reads like a whole other language. Put simply, someone can do it themselves, but it’s wiser to get an attorney because it would make the process go quicker and more smoothly without any objections.

How Many Times Will Someone Have to Go to Court if They Have an Attorney?

The client won’t have to go to court if their attorney has completed all of the paperwork properly, provided there is no objection to the expungement, because the attorney can go to court in their place. The exception is an early pathway expungement, when someone tries to expunge a felony conviction after five years from the date the sentence was completed, but before the 10-year waiting period is over, because they have to prove to the judge that it is in the public interest for the expungement to go through, and they will have to attend that hearing.

What Should Someone Bring and What is Discussed at the First Meeting for an Expungement?

I will generally ask if the person had the paperwork from their case, including the charge, their judgment of conviction or a certified disposition; that’s all I really need. I can get all the other information myself, like Social Security number, date of birth, and so forth. If the person did not have their information and/or could not remember what they were charged with, I will direct them to the New Jersey State Police website to run their criminal history and to come see me when they had it.

The criminal history is not everything I need for the petition, so I will ask the client to do the fingerprints, although I will do all other work for the most part, like OPRA requests, simple records request and all of that, which can be obtained through the New Jersey courts website. I try to make the process as painless as possible for my clients; they are paying me for a service and I will try to give them 120 percent satisfaction on it.

Does It Help With an Expungement if the Attorney Is Well-Connected?

Having an attorney who knows the players definitely helps, unless it was a complicated expungement. In those cases, it won’t matter who the attorney knew, as long as they put in all the proper information, in which case it should be granted. I handled one recently in which there were some interesting factual distinctions in a petition the person tried to do one on their own. The prosecutor objected, but I knew him and his personality, so I knew how I could make this go through quickly and I did. It was just a matter of knowing the players, like the saying, “It doesn’t matter what you know, it’s who you know.”

Tips for Prospective Clients to Prepare for a Future Expungement

First, they should keep all their paperwork from their case, including all police reports, because they will be important. That will make my job a lot easier and the process a lot quicker, because I won’t have to make applications to courts to get all the paperwork.

The second thing the person can do is to just flat out not get into any more trouble; people have come to me after getting two disorderly persons convictions and I tell them they have one more bite of the apple. They need only pick up one more conviction for a disorderly persons offense because if they pick up four, we can’t have anything expunged.

How Can Someone Verify The Charge Was Expunged?

Once the expungement goes through, the person should run their criminal history again, which will cost about $40, to make sure the charges were off and someone who is really detail-oriented can call all the agencies that were served to make sure they actually did it. In 20 years, I have only seen one incident in which a municipal court did not expunge someone’s charges because they forgot; they received the order but forgot to do it and I found that out when my client applied for a gun permit or something like that and he called the court, who told him the charges came up on his record, which surprised him, since those charges had actually been expunged. They realized their mistake and I then had to re-send them the order, but this was around five years later.

Is Someone Home Free if They Don’t Show up on Google?

People think, if it is not on Google, it didn’t happen, and what shows up on Google stays on Google, although I have no idea what that means. With the wonders of technology and the Internet, if something went onto Google and the person got it expunged, it won’t be expunged from Google, since the expungement is only binding on criminal justice agencies. If someone is arrested and the local newspaper picks it up, and someone puts it on their Facebook page or puts it on Google, the expungement will have no effect.

If you Google yourself and you find your criminal record on Google, getting an expungement won’t remove it from there. In my practice, I will send the expungement order to the news agency or to the webmaster who put it up there and I would tell them I have a court order from New Jersey expunging this, but they are neither responsible nor required by law to remove it. Nevertheless, I’ll still request that they take it off because I want to protect my client and because it’s actually a disorderly persons offense in New Jersey if someone knows about an expungement and they disclose that the person who got the expungement had actually been charged and arrested; they can be fined $250. I cite the statute in my letter and tell them that, since they are now aware of the expungement, they can technically be charged if they continue to disclose that information.

Is Someone Clear if They Search for Their Name and Nothing Came Up?

I will usually ask clients if they remember ever being arrested or charged; if they say yes, my next question is whether they remember which town it happened in. For example, if they say it was Cherry Hill, I will tell them go to Cherry Hill and make an OPRA records request. On the other hand, if the person says they have never been arrested or charged, that they had run their criminal history and nothing came up, I will say they have nothing to worry about. Of course, I have also dealt with people who have run their criminal histories and found convictions on their history and that a friend or family member had used their information, which is not uncommon.

Even if it was not their conviction, it is still in their name and they can’t expunge it; they will have to use a completely different and creative tactic, by going to court to have the conviction overturned by proving they were not the person who committed the crime. I have handled this several times as part of my practice.

How Does a Record Look After Successful Expungement?

Once something had been successfully expunged, the record will look as if nothing happened, which means, if someone like an employer ran their criminal history, there will be no identifiable record, which will absolutely be a relief for the client and will make them very happy when these go through. I also really enjoy doing them for clients.

Under What Circumstances Would Someone Have to Disclose a Conviction After It Was Expunged?

The person will have to apply for PTI if they had an expungement and picked up new charges, and they will have to inform that they had a prior expungement because it could potentially bar them from getting into the PTI. Another time they have to mention it is if they’re applying for another expungement because they have to verify the previous ones and they will also have to disclose it if they sought employment within the judicial branch or with a law enforcement or corrections agency.

These are the three times when someone has to disclose an expungement, although there are other times when it has to be revealed, such as if the person applied for PTI, because then the court system can see the expungement. If someone is convicted, then at the time of sentencing, the judge can rely upon a prior conviction even though it was expunged and if they went to state prison, the Department of Corrections can see that prior conviction, as can the parole board.

Our Representation in Expungement Proceedings

At the Law Office of Matthew V. Portella, LLC, we bring more than 20 years of experience to people in all of New Jersey who have been charged with crimes. We know that the criminal justice system can be confusing. We will always explain the law and legal process in plain English so that you know where you stand and what your options are. We’ll take the time to learn your specific needs and goals so that we can tailor our representation to get the outcome you want. We will never leave you in the dark. We will keep you up to date on all developments in your case.

When you hire us to help you clean up your criminal record, we will carefully gather and assess all evidence supporting your petition. We’ll prepare and file all necessary documentation with the court, and will advocate for you in all hearings or proceedings. In most instances, you won’t even have to appear in court.

With more than 20 years of experience in all of the New Jersey area, the Law Offices of Matthew V. Portella provides services in Atlantic, Burlington, Camden, Cape May, Cumberland, Gloucester, Mercer, and Salem Counties, and also appears in all of the municipal courts in those counties.

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