Is a Sale of a Controlled Substance Conviction Eligible for Expungement in New Jersey?

In re G.R.
Superior Court of New Jersey, Appellate Division
April 18, 2007

Holding: A petitioner is statutorily barred from criminal record expungement where he has been convicted for the sale or distribution of a controlled dangerous substance.

Why This Case is Important: A petitioner initially has the burden to prove that he is eligible for criminal record expungement under Chapter 52 of New Jersey Statutes. Once the petitioner provides evidence that he is eligible for record expungement, the burden shifts to the Government to prove by a preponderance of the evidence that there is a statutory bar that would prevent the petitioner from expunging his records.

New Jersey statute § 2C:52-2 provides the statutory bars for expungement. The statute states records of conviction for murder, manslaughter, treason, anarchy, kidnapping, rape, forcible sodomy, arson, perjury, false swearing, robbery, embracery, or a conspiracy or any attempt to commit any of the foregoing, or aiding, assisting or concealing persons accused of the foregoing crimes, shall not be expunged. N.J. Stat. Ann. § 2C:52-2 (West). Furthermore, there is a statutory bar on expungement for those convicted for the sale or distribution of a controlled dangerous substance or possession thereof with the intent to sell.

This case deals with the statutory bar placed on a petitioner who has been convicted of possession with the intent to sell. Although a petitioner may have originally been convicted with the intent to distribute a dangerous controlled substance, the court in this case held that it would still be proper to bar expungement of his conviction if the government could prove that the petitioner’s intent was to sell the controlled substance. As such, the court is required to look at the facts of the conviction to determine whether the petitioner indeed intended to sell. If the petitioner’s intent was to sell the drugs, then he will be statutorily barred from expungement. However, if the petitioner’s intent was to distribute the drugs without sale, then he will not be barred.

Facts of This Case: The petitioner in this case pled guilty to first-degree possession of 204.34 grams of cocaine, with the intent to distribute. He was sentenced to five years of probation. More than ten years after the conviction, the petitioner applied for criminal record expungement. The court determined that the petitioner was statutorily barred from criminal record expungement, holding that the petitioner had the intent to sell the controlled substance. The petitioner appealed, arguing that he was convicted for possession with the intent to distribute.

The appellate division of the New Jersey superior court affirmed the order denying expungement. The appellate court held that the statutory bar applied to convictions for possession to distribute where the facts showed that the intent was to sell the drugs. The appellate court determined that the court had to look to the facts surrounding the conviction in order to determine this intent. The appellate court concluded that if the facts evidenced intent to sell, then the petitioner would be barred from expungement.

However, if the facts indicated that the petitioner intended to distribute without sale, then he would be eligible for criminal record expungement.

Because the facts on the record indicated the intent to sell, the appellate court affirmed the decision to deny the petitioner’s expungement.

Key Language: A sale of a controlled dangerous substance is a bar to expungement; but a transfer for no consideration is not. Therefore, we clarify that the facts must be examined to determine if the underlying possession of the CDS was the intent to sell, as opposed to dispense or distribute without a sale.

Expert Advise: “Once a petitioner proves he is eligible for expungement, then the burden shifts to the government to prove that the petitioner is statutorily barred. As what happened in this case, the court will take into consideration facts and circumstances surrounding the conviction to make a determination as to whether a petitioner will be denied relief.” -Attorney Mathew Higbee.

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