Expungement of an Indictable Offense in New Jersey
Clearing an Indictable Conviction in Newark and Essex County
A New Jersey indictable conviction does not necessarily have to remain part of a person’s record indefinitely. N.J.S.A. 2C:52-2 allows many qualifying criminal convictions to be expunged once the statutory requirements have been satisfied.
Whether a conviction qualifies, however, cannot always be determined from the offense standing alone. New Jersey’s current law considers the person’s broader criminal history, the number and relationship of convictions, completion of the sentence, financial obligations, and whether the particular crime is excluded from expungement.
For someone with an older criminal conviction, the first step is therefore to determine exactly what appears in the record and how those convictions fit within the eligibility provisions that exist today. To discuss whether your conviction may qualify, call our Essex County expungement lawyers at 201-654-3464. Free consultations are available 24/7.
New Jersey Indictable Offenses and Felonies
New Jersey does not formally classify offenses as felonies and misdemeanors in the same manner as many other states.
Instead, offenses classified as crimes are generally indictable offenses. They are ordinarily designated as first-, second-, third-, or fourth-degree crimes. Common examples include aggravated assault, eluding, unlawful firearms possession, unlawful possession of weapons, and possession of controlled dangerous substances such as cocaine or heroin.
Disorderly persons and petty disorderly persons offenses are treated differently and are not classified as crimes under New Jersey law.
This distinction carries over into expungement. N.J.S.A. 2C:52-2 governs qualifying indictable convictions, while separate statutory provisions apply to records consisting solely of disorderly persons and petty disorderly persons convictions.
Which Criminal Histories Can Qualify?
A Single Criminal Conviction
A person with one New Jersey criminal conviction may be able to seek expungement under N.J.S.A. 2C:52-2 if the remaining statutory requirements are satisfied.
Current law also addresses prior convictions differently from subsequent convictions in certain circumstances. A prior criminal conviction does not invariably prevent an application concerning a later conviction, although a previous expungement and other portions of the person’s history can affect the result.
This makes the chronology of a criminal record important. Two people with the same number of convictions can face different eligibility questions depending on when the convictions occurred and which records are included in the requested relief.
A Crime Plus Disorderly Persons Offenses
New Jersey law also recognizes a criminal history containing both an indictable conviction and lower-level offenses.
A qualifying application may include one crime together with no more than three disorderly persons or petty disorderly persons convictions.
Additional convictions outside the group being considered can affect eligibility. In particular, subsequent criminal or disorderly persons convictions are addressed expressly by the statute.
For someone whose history includes both Superior Court and municipal court cases, each disposition should therefore be identified before determining whether the record fits this provision.
More Than One Indictable Conviction
Having multiple indictable convictions does not automatically end the expungement inquiry.
N.J.S.A. 2C:52-2 recognizes circumstances in which multiple crimes can be considered for expungement:
- Qualifying convictions appearing in a single judgment of conviction; and
- Convictions for crimes, or combinations of crimes and disorderly persons or petty disorderly persons offenses, that were interdependent or closely related in circumstances and occurred as part of a sequence of events taking place within a comparatively short period of time.
The second provision is sometimes described in discussions of New Jersey expungement law as involving a series or “crime spree,” but the statutory language is more precise. The question is not simply whether several offenses occurred during the same general period.
The relationship among the offenses, the circumstances surrounding them, the period over which they occurred, the judgments entered, and the person’s other criminal history can all matter.
New Jersey courts have applied this statutory language to determine whether separate convictions were sufficiently related to qualify. The analysis is therefore more fact-specific than simply counting the number of indictable convictions.
How Long Must You Wait?
For a traditional expungement under N.J.S.A. 2C:52-2, the ordinary waiting period is five years.
The five years are measured from the latest applicable event identified by the statute, including:
- The person’s most recent conviction;
- Payment of a court-ordered financial assessment;
- Satisfactory completion of probation or parole; or
- Release from incarceration.
This means that five years from the date of conviction is not always the correct eligibility date.
Someone who completed probation several years after the conviction, for example, may have a different starting point for calculating the statutory period.
Is Expungement Possible in Less Than Five Years?
In certain circumstances, yes.
N.J.S.A. 2C:52-2 contains a provision allowing the court to consider an application when at least four years but less than five years have elapsed from the latest applicable event.
The person must satisfy the additional requirements imposed by that provision, including the restriction concerning convictions since the most recent conviction, and the court must find compelling circumstances supporting the expungement.
This is an exception to the ordinary timing rule rather than a general four-year waiting period.
The statute separately addresses circumstances involving the timing and payment of court-ordered financial assessments.
Fines, Fees, and Restitution
Financial obligations imposed as part of a criminal sentence can affect the expungement timeline.
New Jersey law defines a court-ordered financial assessment for purposes of N.J.S.A. 2C:52-2 to include a fine, fee, penalty, restitution, and other financial assessments ordered by the court.
The statute nevertheless recognizes circumstances in which an assessment remains unpaid for reasons other than willful noncompliance after the five-year requirement is otherwise satisfied.
When relief is granted under that provision, the unpaid portion is addressed through the civil-judgment procedure established by the statute.
There are also provisions addressing an assessment that was eventually paid but was satisfied less than five years before the application.
The existence of a balance or a recently completed payment therefore requires examination of the applicable provision rather than an automatic conclusion that expungement is unavailable.
Crimes That New Jersey Does Not Permit to Be Expunged
The passage of time does not make every indictable conviction eligible.
N.J.S.A. 2C:52-2 contains a statutory list of crimes excluded from expungement. The exclusions include numerous serious offenses, such as kidnapping, robbery, human trafficking, specified sexual offenses, certain offenses involving children such as child endangerment, perjury, false swearing, terrorism, and most criminal homicide offenses, including murder, among others.
The homicide exclusion itself contains statutory exceptions, which is another reason not to rely on a generalized list when evaluating a particular conviction.
The statute separately restricts expungement of a crime committed by a person holding public office, position, or employment when the crime involved or touched that office, position, or employment.
Eligibility should therefore be based on the actual statute of conviction and the circumstances relevant to the statutory exclusion.
Drug Convictions Require Additional Review
A conviction involving a controlled dangerous substance can present a separate eligibility question.
N.J.S.A. 2C:52-2 generally restricts expungement of convictions involving the sale or distribution of a controlled dangerous substance or possession with intent to sell.
The statute contains exceptions, however, including provisions addressing specified marijuana and hashish offenses and certain third- or fourth-degree convictions involving other controlled dangerous substances when the statutory requirements and compelling-circumstances standard are satisfied.
As a result, the fact that a conviction involved distribution does not by itself answer whether expungement is available.
The particular substance, degree of the conviction, conduct involved, and applicable statutory exception should be reviewed.
Why Prior and Subsequent Convictions Matter
One of the more important features of current N.J.S.A. 2C:52-2 is the distinction it draws between prior and subsequent convictions.
Depending on the particular route being used, a prior conviction may not necessarily prevent an application concerning the conviction or group of convictions for which relief is sought.
Subsequent convictions can present a different problem. The statute places specific limitations on later crimes and offenses in its various eligibility provisions.
A person’s criminal history should therefore be reviewed chronologically rather than simply reduced to a total number of convictions.
A previous criminal conviction that has already been expunged can also remain relevant because N.J.S.A. 2C:52-2 makes its relief subject to the restrictions contained in N.J.S.A. 2C:52-14(e).
What If the Record Does Not Qualify Under N.J.S.A. 2C:52-2?
Failure to satisfy the traditional indictable-conviction provision does not necessarily answer every possible expungement question.
New Jersey has other statutory forms of expungement relief, including Clean Slate under N.J.S.A. 2C:52-5.3 for qualifying criminal histories. Cases that ended in dismissal after Pretrial Intervention follow separate rules for expungements after diversionary programs.
Clean Slate has separate requirements and should not be treated as a way around convictions that New Jersey law expressly makes ineligible for expungement.
The appropriate inquiry is whether the person’s history satisfies the requirements of any currently available expungement provision.
Where Can the Application Be Filed?
Current law permits an application under N.J.S.A. 2C:52-2 to be submitted to the Superior Court in the county where the person resides or in a county where one or more of the convictions were adjudged.
A person with an Essex County conviction therefore may have more than one permissible venue depending on where the person currently resides and the convictions involved. Essex County matters are generally handled through the Essex County Superior Court.
This is another area where older descriptions of New Jersey expungement procedure may no longer reflect the current statute.
Essex County Indictable Offense Expungement Lawyers
Determining whether an indictable conviction can be expunged requires a review of more than the original charge. The final conviction, sentence, completion dates, financial assessments, prior and subsequent history, and any statutory exclusion can affect the analysis.
The Tormey Law Firm represents clients seeking expungement of indictable convictions in Essex County and throughout New Jersey.
Our attorneys can review the criminal history, determine whether the conviction or convictions satisfy the requirements of current New Jersey expungement law, prepare the necessary application, and address issues that arise during the expungement proceeding.
If you have an indictable conviction from Newark, East Orange, West Orange, Bloomfield, Montclair, Belleville, Nutley, Livingston, Millburn, Irvington, Verona, Cedar Grove, or another Essex County municipality, contact The Tormey Law Firm to discuss whether the record may qualify for expungement. Call 201-654-3464 or contact us online for a free consultation.
