If you are applying for an early expungement in New Jersey, also referred to as an “early pathway” or “public interest” expungement, this guide has been prepared to answer some of the most frequently asked questions about early expungements in New Jersey.
What is an early expungement?
Early expungements refer to those cases where the petitioner (the individual seeking an expungement) is applying to expunge their offense on an early basis. Ordinarily, an individual seeking to expunge a felony conviction must wait at least 10 years from the date they completed their sentence (which includes payment of fine and/or completion of probation), while an individual that is seeking to expunge a misdemeanor (or “disorderly persons offense”) must wait at least 5 years from the date they completed their sentence to apply for an expungement.
Under the early expungement statutes (which are located at N.J.S.A. 2C:52-2(a)(2) for felony convictions and N.J.S.A. 2C:52-3(b)(2) for misdemeanor convictions), however, individuals may request that the court expunge their convictions earlier. For those seeking to expunge a felony conviction, they can apply for an early expungement five years after completion of their sentence, while those seeking to expunge a misdemeanor conviction can apply for an early expungement three years after completion of their sentence.
What is the difference between a regular expungement and an early expungement?
With standard expungements in New Jersey, as long as the petition meets the requisite time period (10 years for felonies, 5 years for misdemeanors), the petitioner is “presumptively entitled” to an expungement, meaning that the judge will grant the petitioner’s request for expungement regardless of any other considerations. In other words, the petitioner does not need to prove to the judge that they deserve expungement. They simply need to be able to demonstrate that they meet the necessary time requirement.
With early expungements, on the other hand, the court has discretion in deciding whether or not to grant expungement before the standard time requirement has passed. Thus, the petitioner needs to prove not only that they meet the necessary time requirement applicable to early expungements, but also that they deserve an early expungement. The burden of proof is on the petitioner – meaning the petitioner must introduce evidence that supports their request for early expungement. The judge, however, is free to deny the petitioner’s request if he or she determines that the petitioner has not sufficiently proved that they are deserving of an early expungement.
What is required for an early expungement case?
Due to the nature of early expungement cases, the prosecutor is likely to object to your expungement. If the prosecutor objects to your expungement, your attorney will need to prepare a legal brief outlining all of the reasons as to why you deserve an early expungement. Moreover, almost all early expungement cases will require a court appearance. At the court appearance, the petitioner’s attorney will be expected to present oral argument to the court as to why the petitioner deserves an early expungement. The petitioner may also be expected to testify at the hearing.
In addition to requiring a brief and a court appearance, petitioners seeking early expungements are also required to present other documentary evidence to the court. If the petitioner fails to include the requisite documentation, then their application could be denied. For example, New Jersey case law relating to early expungements requires that applicant to provide the court and County Prosecutor with a copy of their Pre-Sentence Investigative (“PSI”) Report as well as with copies of both Plea and Sentencing Transcripts.
What standard does the court apply in determining whether or not to grant my early expungement request?
In determining whether or not to grant your request for an early expungement, the judge assigned to handle your case will analyze whether:
- You meet the time requirement for early expungements. Meaning at least 5 years has passed since you completed your sentence for a felony conviction or at least 3 years has passed since you completed your sentence for a misdemeanor conviction.
- You have no subsequent convictions. In order to be eligible for an early expungement, you must not have been convicted of any felonies or misdemeanors (disorderly or petty disorderly persons offense) since the time of conviction. If you have been convicted of any subsequent offenses, you are not eligible for an early expungement. Instead, you must wait the standard time period of either 10 years (for felonies) or 5 years (for misdemeanors).
- Early expungement would be in the public interest. In determining whether your expungement would be in the public interest, the court will evaluate the nature of the offense and your character and conduct since conviction.
How do I persuade the court to conclude that my early expungement would be in the “public interest”?
In deciding whether an expungement would benefit the public interest, courts are able to consider many factors, including:
- Whether or not you have engaged in activities that limit the risk of re-offending (such as job training, education, sports, community involvement, etc.);
- Whether you have complied with other legal obligations (such as child support, motor vehicle fines, etc.);
- Whether or not you have maintained family and community ties that promote law-abiding behavior;
- Whether or not you have severed ties with persons in the criminal environment;
- Whether or not you performed exemplary on probation/prison and/or were discharged early from probation/prison;
- The number of years you have remained offense-free for;
- Mitigating factors relating to any subsequent arrests;
- Circumstances surrounding the offense (such as age) and the nature of the offense (what was the offense for? describe the circumstances surrounding your arrest, etc.)
- Your character and conduct before and/or after the conviction; and
- Any evidence that the conviction has impeded your efforts to resume a productive, law-abiding life (such as evidence that the record has affected your employability, ability to coach, etc.).
[See In re Kollman, 210 N.J. 557 (2012).]
Thus, the legal brief submitted on your behalf should address each and every applicable factor listed above and should demonstrate to the court why that factor weighs in favor of early expungement.
What types of documentary evidence should be included to prove that expungement would be in the public interest?
In order to demonstrate to the court that your expungement would be in the public interest, the following types of documentary evidence should also be included as exhibits to your expungement brief:
- Character reference letters from people/organizations in the community that can attest to your character and reputation;
- Documents referencing any volunteer work and/or charitable activities;
- Documents referencing your involvement in any activities that limit the risk of offending;
- Documents referencing any impediments your conviction have caused; and
- Any other documents referencing the factors the judge will use to decide your case.
Should I retain an attorney to represent me on my early expungement?
Early expungements are considered complex expungements in New Jersey. It is therefore highly advised that you retain an attorney to represent you if you are applying for an early expungement. This is because, as discussed above, there are many requirements that must be met — over and above what is required for a standard expungement in New Jersey. If you fail to follow these additional requirements, there is a good chance that your early expungement request could be denied.
New Jersey Expungement Lawyers
Katherine O’Brien has helped many clients apply for and receive early expungements in New Jersey. If you have questions about your early expungement, contact Katherine O’Brien Law today for a free consultation. Call us today at 856-832-2482.