At Katherine O’Brien Law, we often encounter a common misconception regarding the eligibility for expungement of first or second-degree convictions for conspiracy to distribute controlled dangerous substances (CDS) in New Jersey. Many believe that such convictions are barred from expungement under N.J.S.A. 2C:52-2. However, our recent legal victories have demonstrated that this is not the case.
In this blog post, we will break down our argument, which the court accepted, that first and second-degree conspiracy convictions are indeed eligible for expungement and are not barred by the statute.
The Legal Argument: Expungement Eligibility
The confusion arises from the interpretation of N.J.S.A. 2C:52-2. This statute outlines specific crimes that are not eligible for expungement. The State often argues that convictions for first and second-degree conspiracy to distribute CDS fall under this prohibition. However, a closer examination of the statute reveals that this is not the case.
Statutory Provisions: N.J.S.A. 2C:52-2b and N.J.S.A. 2C:52-2c
- N.J.S.A. 2C:52-2b: This provision lists several serious crimes, such as homicide, kidnapping, and sexual assault, which are ineligible for expungement. It also includes conspiracies or attempts to commit these crimes.
- N.J.S.A. 2C:52-2c: This section addresses the expungement of convictions for the sale or distribution of CDS or possession with intent to sell. It specifically bars expungement for first and second-degree offenses, except in cases involving small amounts of marijuana or hashish. Importantly, the language of this provision does not extend to conspiracies to commit these offenses, as it does for N.J.S.A. 2C:52-2b.
Plain Language and Legislative Intent
Just recently, Katherine O’Brien Law represented a client who was convicted of second-degree conspiracy to distribute CDS. The State argued that the client’s conviction was barred from being eligible for expungement under N.J.S.A. 2C:52-2c. Our argument was based on the plain language of the statute and the legislative intent. We argued that the statute clearly distinguishes between the substantive crime of distributing CDS and the inchoate crime of conspiracy to distribute CDS. We further pointed out that the legislature has shown, through unmistakable clarity in other parts of the statute (i.e., in N.J.S.A. 2C:52-2n, for example), when conspiracies to commit specific crimes are to be barred from expungement. This clarity is absent in the context of CDS-related offenses under N.J.S.A. 2C:52-2c.
Key Case Law: Supporting Precedents
Our argument was further supported by relevant case law. The Appellate Division’s decision in In re Application of R.W.B. Jr. for Expungement of Records and In the Matter of the Expungement Petition of D.P. were instrumental in shaping our argument.
- In re R.W.B. Jr.: The court emphasized that statutory exceptions to expungement should be strictly construed. The absence of a clear prohibition against expunging conspiracy convictions under N.J.S.A. 2C:52-2c meant that the legislature did not intend to bar such expungements.
- In the Matter of the Expungement Petition of D.P.: The court reaffirmed that the language of N.J.S.A. 2C:52-2c is unambiguous and should be interpreted literally. The distinction between conspiracy and the substantive offense was highlighted, recognizing that conspiracy is a separate crime with different intent and punishment.
Court’s Decision: A Victory for Our Client
Based on these arguments, the court agreed that our client’s conviction for second-degree conspiracy to distribute CDS is eligible for expungement. The court acknowledged that the plain language of N.J.S.A. 2C:52-2c does not bar expungement for conspiracy convictions and recognized the legislative intent to exclude such prohibitions unless explicitly stated.
This decision is a significant victory for individuals seeking to clear their records of conspiracy convictions related to CDS. It underscores the importance of precise statutory interpretation and the need to differentiate between substantive crimes and conspiracies.
In addition to winning in this most recent case, our office has raised this argument in several other occasions and has likewise been successful.
How Katherine O’Brien Law Can Help
If you or someone you know has been convicted of conspiracy to distribute CDS in the first or second degree, it is essential to understand that expungement may be possible. At Katherine O’Brien Law, we have the expertise and experience to navigate the complexities of expungement law and achieve favorable outcomes for our clients. Our team is dedicated to providing thorough and effective legal representation to help you clear your record and move forward with confidence.
For more information and a consultation, please visit our website. We are here to help you achieve a fresh start.
Our Guaranteed Expungement Service* includes all of the following:
When we handle your expungement, our service includes not only obtaining the actual court order expunging/sealing your records but we will also:
- Guaranteed Expungement* or Your Money Back! We are so confident in our services that we will guarantee expungement or we will refund our legal fee in full.
- Obtain non-certified dispositions for your records. Before expunging/sealing your record, you should obtain your case dispositions for your files since, once the records are ordered expunged/sealed, you will likely not be able to obtain them. Should you ever be required to disclose or need access to your expunged/sealed records for any reason, it will be tough, if not impossible, to obtain them once your cases have been expunged/sealed. As part of our representation, we will obtain non-certified case dispositions on your behalf. Moreover, should you require certified case dispositions (usually required for immigration proceedings), we can also obtain those on your behalf for an additional fee.
- Ensure that your expunged/sealed records are removed from private databases. As part of our representation of you, we will not only obtain an order expunging/sealing your records and ensure that your records are removed from the applicable state agencies’ databases, but we will go the extra mile by providing – at no additional cost – the invaluable service of making sure that the various online, private background check databases (such as Checkr, Truthfinder, Sterling, etc.) have removed your expunged records from their databases. Other law firms either do not offer this service at all or charge upwards of $200 to $400 additional for this service. At Katherine O’Brien Law, when we say that we will handle your expungement/sealing from start to finish for a flat fee price, we mean it, and we go above and beyond for our clients to ensure their expunged records are removed for good from all possible sources.
- Ensure that your expunged records are removed from government databases. After the court orders your expungement and the expungement order is served on the applicable government agencies, such as the police department that arrested you, the applicable court, the probation office, the county prosecutor, etc., the expungement lawyers at Katherine O’Brien Law will go above and beyond by confirming that your records were actually removed from the applicable databases. You would not believe how frequently we have found the state agencies to have failed to properly update their databases – despite proper service of the expungement order by our office. Shockingly, we have found that approximately one-third of the time, government agencies have failed to remove expunged records from these databases properly. We cannot stress how important it is to verify, post-expungement, that the state agencies, such as the municipal courts, have removed your records per the expungement order.
- Offer free lifetime record removal services. Finally, despite our diligent and proper handling of your case and our dedication to ensuring that your records have been appropriately removed from the state and private databases, with the advent of the internet and information sharing, it is possible that an Internet background check company might improperly reveal your expunged record. Should this happen to you, we offer a free lifetime record removal service to our expungement/sealing clients. We will immediately reach out to the relevant background check company on your behalf and demand that they remove your expunged records from their system and correct any reports issued on your behalf. Other law firms provide you with a form letter and instructions on how to do this yourself.
*The use of the word “guaranteed” in attorney advertisements specifically refers to a refund policy and does not imply a guarantee of any particular outcome in your legal case. Legal cases are inherently unpredictable, and the result of any legal matter cannot be assured. Katherine O’Brien Law guarantees that you will receive a full refund of our legal fee if you do not obtain the desired outcome. This guarantee applies solely to the refund and not to the success or outcome of your case. Please also be advised that if expungement was denied for your failure to disclose your entire criminal record, the guarantee does not apply. For more information and to discuss your specific legal situation, please consult with one of our experienced attorneys.
