An Act concerning sealing of certain criminal records, amending N.J.S.2C:43-3 and N.J.S.2C:43-6, and supplementing Title 2C of the New Jersey Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. (New section) a. Notwithstanding any other provision of law, any person convicted of a crime of the third degree or a crime of the fourth degree under the laws of this State, who for a period of five years from the date of this last conviction, payment of fine, satisfactory completion of probation or release from incarceration, whichever is later, has not been convicted of any subsequent crime whether in this State or any other jurisdiction, or of any other disorderly persons or petty disorderly persons offense, and no charges are currently pending, may present a duly verified petition to the Superior Court in the county or counties in which each conviction was entered seeking to have each conviction involving a disorderly persons offense, a petty disorderly persons offense, a crime of the third degree, or a crime of the fourth degree, and all records and information related thereto sealed.

b. Any person convicted of a disorderly persons offense or a petty disorderly persons offense under the laws of this State, who for a period of three years from the date of his last conviction, payment of fine, satisfactory completion of probation or release from incarceration, whichever is later, has not been convicted of any subsequent crime whether in this State or any other jurisdiction, or of any other disorderly persons or petty disorderly persons offense, and no charges are currently pending, may present a duly verified petition to the Superior Court in the county or counties in which each conviction was entered seeking to have each conviction involving a disorderly persons offense or a petty disorderly persons offense and all records and information related thereto sealed.

c. A person found guilty of violating a municipal ordinance of any governmental entity of this State who, for a period of one year from the date of his last conviction, payment of fine, satisfactory completion of probation or release from incarceration, whichever is later, has not been convicted of any subsequent crime whether in this State or any other jurisdiction, or of any other disorderly persons or petty disorderly persons offense or violation of a municipal ordinance, and no charges are currently pending, may present a duly verified petition to the Superior Court in the county or counties in which each conviction was entered seeking to have each conviction involving a municipal ordinance violation and all records and information related thereto sealed.

2. (New section) a. Except as otherwise provided, "sealed" shall mean that all index references shall be marked "not available" or "no record" and law enforcement officers and departments shall reply and the person may reply to any inquiry that there is no record with respect to such person, except that records may be maintained for purposes of reestablishing a record of offenses in the event of a subsequent violation.

b. Sealed records shall include complaints, warrants, arrests, commitments, processing records, fingerprints, photographs, index cards, "rap sheets," judicial docket records, and correctional, probation and parole records.

c. Expungement of sealed records shall be governed by the applicable provisions of chapter 52 of Title 2C of the New Jersey Statutes.

3. (New section) a. If, within five years of the entry of an order to seal records, the person to whom the court granted such order is convicted of a crime or offense, said court shall nullify the order.

b. Upon conviction, the person shall be subject to a fine twice that otherwise applicable to the offense and a sentence of imprisonment with a minimum period of parole ineligibility as provided in subsection j. of N.J.S.2C:43-6. Additionally, any penalty imposed by the court other than a fine or a sentence of imprisonment may be doubled.

c. Nothing in this subsection shall prohibit the person from subsequently petitioning for an order to expunge the record.

d. Nothing in this subsection shall prohibit the person from subsequently petitioning for an order to seal records.

4. (New section) a. Every petition for an order to seal records filed pursuant to this section shall be verified and include:

(1) Petitioner's date of birth;

(2) Petitioner's dates of arrest;

(3) The statutes and offenses for which petitioner was arrested and of which petitioner was convicted;

(4) The original indictment, summons or complaint number;

(5) Petitioner's dates of conviction, or dates of disposition of the matter if no conviction resulted; and

(6) The court's disposition of the matter and the punishment imposed, if any.

b. There shall be attached to a petition for an order to seal records a statement with the affidavit or verification that there are no disorderly persons, petty disorderly persons or criminal charges pending against the petitioner at the time of filing of the petition for an order to seal.

c. Upon the filing of a petition for relief pursuant to this act, the court shall, by order, fix a time for hearing of the matter.

d. A copy of each petition, together with a copy of all supporting documents, shall be served pursuant to the rules of court upon the Superintendent of State Police; the Attorney General; the county prosecutor of the county wherein the court is located; the chief of police or other executive head of the police department of the municipality wherein the offense was committed; the chief law enforcement officer of any other law enforcement agency of this State which participated in the arrest of the individual; the superintendent or warden of any institution in which the petitioner was confined; and, if a disposition was made by a municipal court, upon the judge of that court.

e. If, prior to the hearing, there is no objection from those law enforcement agencies notified or from those offices or agencies which are required to be served, and no reason appears to the contrary, the court may, without a hearing, grant an order directing the clerk of the court and all relevant criminal justice and law enforcement agencies to seal records of said disposition including evidence of arrest, detention, conviction and proceedings related thereto.

f. In the event that none of the persons or agencies required to be noticed has entered any objection to the relief being sought, the court may nevertheless deny the relief sought if it concludes that petitioner is not entitled to relief for the reasons provided in this section.

g. No petition for relief made pursuant to this section shall be heard by any court if the petitioner, at the time of filing or date of hearing, has a charge or charges pending against him which allege the commission of a crime, disorderly persons offense, or petty disorderly persons offense. Such petition shall not be heard until such times as all pending criminal and or disorderly persons charges are adjudicated to finality.

h. A petition for an order to seal records filed pursuant to this section shall be denied when any statutory prerequisite is not fulfilled or there is any other statutory basis for denying relief.

i. Prior to the entry of an order to seal records, the court shall inform the person orally and in writing that any conviction of a crime or offense within a five year period subsequent to the grant of an order to seal shall have the effect of nullifying the order to seal, and can result in the imposition of a doubled fine for the subsequent offense. The petitioner shall be required to acknowledge receipt of this information.

5. N.J.S.2C:43-3 is amended to read as follows:

2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:

a. (1) $200,000.00 when the conviction is of a crime of the first degree;

(2) $150,000.00 when the conviction is of a crime of the second degree;

b. (1) $15,000.00 when the conviction is of a crime of the third degree;

(2) $10,000.00 when the conviction is of a crime of the fourth degree;

c. $1,000.00, when the conviction is of a disorderly persons offense;

d. $500.00, when the conviction is of a petty disorderly persons offense;

e. Any higher amount equal to double the pecuniary gain to the offender or loss to the victim caused by the conduct constituting the offense by the offender. In such case the court shall make a finding as to the amount of the gain or loss, and if the record does not contain sufficient evidence to support such a finding the court may conduct a hearing upon the issue. For purposes of this section the term "gain" means the amount of money or the value of property derived by the offender and "loss" means the amount of value separated from the victim or the amount of any payment owed to the victim and avoided or evaded and includes any reasonable and necessary expense incurred by the owner in recovering or replacing lost, stolen or damaged property, or recovering any payment avoided or evaded, and, with respect to property of a research facility, includes the cost of repeating an interrupted or invalidated experiment or loss of profits. The term "victim" shall mean a person who suffers a personal physical or psychological injury or death or incurs loss of or injury to personal or real property as a result of a crime committed against that person, or in the case of a homicide, the nearest relative of the victim. The terms "gain" and "loss" shall also mean, where appropriate, the amount of any tax, fee, penalty and interest avoided, evaded, or otherwise unpaid or improperly retained or disposed of;

f. Any higher amount specifically authorized by another section of this code or any other statute;

g. Up to twice the amounts authorized in subsection a., b., c. or d. of this section, in the case of a second or subsequent conviction of any tax offense defined in Title 54 of the Revised Statutes or Title 54A of the New Jersey Statutes, as amended and supplemented, or of any offense defined in chapter 20 or 21 of this code;

h. In the case of violations of chapter 35, any higher amount equal to three times the street value of the controlled dangerous substance or controlled substance analog. The street value for purposes of this section shall be determined pursuant to subsection e. of N.J.S.2C:44-2;

i. Up to twice the amounts authorized in subsection a., b., c. or d. of this section, in the case of any conviction within five years following the entry of an order to seal records pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill).

The restitution ordered paid to the victim shall not exceed the victim's loss, except that in any case involving the failure to pay any State tax, the amount of restitution to the State shall be the full amount of the tax avoided or evaded, including full civil penalties and interest as provided by law. In any case where the victim of the offense is any department or division of State government, the court shall order restitution to the victim. Any restitution imposed on a person shall be in addition to any fine which may be imposed pursuant to this section.

(cf: P.L.1997, c.181, s.12)

6. N.J.S.2C:43-6 is amended to read as follows:

2C:43-6. a. Except as otherwise provided, a person who has been convicted of a crime may be sentenced to imprisonment, as follows:

(1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;

(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;

(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;

(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.

b. As part of a sentence for any crime, where the court is clearly convinced that the aggravating factors substantially outweigh the mitigating factors, as set forth in subsections a. and b. of N.J.S.2C:44-1, or the court finds that the aggravating factor set forth in paragraph (5) of subsection a. of N.J.S.2C:44-1 applies, the court may fix a minimum term not to exceed one-half of the term set pursuant to subsection a., or one-half of the term set pursuant to a maximum period of incarceration for a crime set forth in any statute other than this code, during which the defendant shall not be eligible for parole; provided that no defendant shall be eligible for parole at a date earlier than otherwise provided by the law governing parole.

c. A person who has been convicted under subsection b. or d. of N.J.S.2C:39-3, subsection a. of N.J.S.2C:39-4, subsection a. of section 1 of P.L.1998, c.26 (C.2C:39-4.1), subsection a., b. or c. of N.J.S.2C:39-5, subsection a. or paragraph (2) or (3) of subsection b. of section 6 of P.L.1979, c.179 (C.2C:39-7), or subsection a., b., e. or g. of N.J.S.2C:39-9, or of a crime under any of the following sections: N.J.S.2C:11-3, N.J.S.2C:11-4, [2C:12-1b.] subsection b. of N.J.S.2C:12-1, N.J.S.2C:13-1, [2C:14-2a.] subsection a. of N.J.S.2C:14-2, [2C:14-3a.] subsection a. of N.J.S.2C:14-3, N.J.S.2C:15-1, N.J.S.2C:18-2, N.J.S.2C:29-5, who, while in the course of committing or attempting to commit the crime, including the immediate flight therefrom, used or was in possession of a firearm as defined in [2C:39-1f.] subsection f. of N.J.S.2C:39-1, shall be sentenced to a term of imprisonment by the court. The term of imprisonment shall include the imposition of a minimum term. The minimum term shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater, or 18 months in the case of a fourth degree crime, during which the defendant shall be ineligible for parole.

The minimum terms established by this section shall not prevent the court from imposing presumptive terms of imprisonment pursuant to [2C:44-1f. (1)] paragraph (1) of subsection f. of N.J.S.2C:44-1 except in cases of crimes of the fourth degree.

A person who has been convicted of an offense enumerated by this subsection and who used or possessed a firearm during its commission, attempted commission or flight therefrom and who has been previously convicted of an offense involving the use or possession of a firearm as defined in [2C:44-3d.] subsection d. of N.J.S.2C:44-3, shall be sentenced by the court to an extended term as authorized by [2C:43-7c.] subsection c. of N.J.S.2C:43-7, notwithstanding that extended terms are ordinarily discretionary with the court.

d. The court shall not impose a mandatory sentence pursuant to subsection c. of this section, [2C:43-7c.] subsection c. of N.J.S.2C:43-7 or [2C:44-3d.] subsection d. of N.J.S.2C:44-3, unless the ground therefor has been established at a hearing. At the hearing, which may occur at the time of sentencing, the prosecutor shall establish by a preponderance of the evidence that the weapon used or possessed was a firearm. In making its finding, the court shall take judicial notice of any evidence, testimony or information adduced at the trial, plea hearing, or other court proceedings and shall also consider the presentence report and any other relevant information.

e. A person convicted of a third or subsequent offense involving State taxes under N.J.S.2C:20-9, N.J.S.2C:21-15, any other provision of this code, or under any of the provisions of Title 54 of the Revised Statutes, or Title 54A of the New Jersey Statutes, as amended and supplemented, shall be sentenced to a term of imprisonment by the court. This shall not preclude an application for and imposition of an extended term of imprisonment under N.J.S.2C:44-3 if the provisions of that section are applicable to the offender.

f. A person convicted of manufacturing, distributing, dispensing or possessing with intent to distribute any dangerous substance or controlled substance analog under N.J.S.2C:35-5, of maintaining or operating a controlled dangerous substance production facility under N.J.S.2C:35-4, of employing a juvenile in a drug distribution scheme under N.J.S.2C:35-6, leader of a narcotics trafficking network under N.J.S.2C:35-3, or of distributing, dispensing or possessing with intent to distribute on or near school property or buses under section 1 of P.L.1987, c.101 (C.2C:35-7), who has been previously convicted of manufacturing, distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog, shall upon application of the prosecuting attorney be sentenced by the court to an extended term as authorized by subsection c. of N.J.S.2C:43-7, notwithstanding that extended terms are ordinarily discretionary with the court. The term of imprisonment shall, except as may be provided in N.J.S.2C:35-12, include the imposition of a minimum term. The minimum term shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater, not less than seven years if the person is convicted of a violation of N.J.S.2C:35-6, or 18 months in the case of a fourth degree crime, during which the defendant shall be ineligible for parole.

The court shall not impose an extended term pursuant to this subsection unless the ground therefor has been established at a hearing. At the hearing, which may occur at the time of sentencing, the prosecutor shall establish the ground therefor by a preponderance of the evidence. In making its finding, the court shall take judicial notice of any evidence, testimony or information adduced at the trial, plea hearing, or other court proceedings and shall also consider the presentence report and any other relevant information.

For the purpose of this subsection, a previous conviction exists where the actor has at any time been convicted under chapter 35 of this title or Title 24 of the Revised Statutes or under any similar statute of the United States, this State, or any other state for an offense that is substantially equivalent to N.J.S.2C:35-3, N.J.S.2C:35-4, N.J.S.2C:35-5, N.J.S.2C:35-6 or section 1 of P.L.1987, c.101 (C.2C:35-7).

g. Any person who has been convicted under subsection a. of N.J.S.2C:39-4 or of a crime under any of the following sections: N.J.S.2C:11-3, N.J.S.2C:11-4, [N.J.S.2C:12-1b.] subsection b. of N.J.S.2C:12-1, N.J.S.2C:13-1, [N.J.S.2C:14-2a.] subsection a. of N.J.S.2C:14-2, [N.J.S.2C:14-3a.] subsection a. of N.J.S.2C:14-3, N.J.S.2C:15-1, N.J.S.2C:18-2, N.J.S.2C:29-5, N.J.S.2C:35-5 who, while in the course of committing or attempting to commit the crime, including the immediate flight therefrom, used or was in possession of a machine gun or assault firearm shall be sentenced to a term of imprisonment by the court. The term of imprisonment shall include the imposition of a minimum term. The minimum term shall be fixed at 10 years for a crime of the first or second degree, five years for a crime of the third degree, or 18 months in the case of a fourth degree crime, during which the defendant shall be ineligible for parole.

The minimum terms established by this section shall not prevent the court from imposing presumptive terms of imprisonment pursuant to paragraph (1) of subsection f. of N.J.S.2C:44-1 for crimes of the first degree.

A person who has been convicted of an offense enumerated in this subsection and who used or possessed a machine gun or assault firearm during its commission, attempted commission or flight therefrom and who has been previously convicted of an offense involving the use or possession of any firearm as defined in subsection d. of N.J.S.2C:44-3, shall be sentenced by the court to an extended term as authorized by subsection d. of N.J.S.2C:43-7, notwithstanding that extended terms are ordinarily discretionary with the court.

h. The court shall not impose a mandatory sentence pursuant to subsection g. of this section, subsection d. of N.J.S.2C:43-7 or N.J.S.2C:44-3, unless the ground therefor has been established at a hearing. At the hearing, which may occur at the time of sentencing, the prosecutor shall establish by a preponderance of the evidence that the weapon used or possessed was a machine gun or assault firearm. In making its finding, the court shall take judicial notice of any evidence, testimony or information adduced at the trial, plea hearing, or other court proceedings and shall also consider the presentence report and any other relevant information.

i. A person who has been convicted under paragraph (6) of subsection b. of N.J.S.2C:12-1 of causing bodily injury while eluding shall be sentenced to a term of imprisonment by the court. The term of imprisonment shall include the imposition of a minimum term. The minimum term shall be fixed at, or between one-third and one-half of the sentence imposed by the court. The minimum term established by this subsection shall not prevent the court from imposing a presumptive term of imprisonment pursuant to paragraph (1) of subsection f. of N.J.S.2C:44-1.

j. A person who has been convicted of an offense within five years following the entry of an order to seal records pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill) shall be sentenced to a term of imprisonment by the court. The term of imprisonment shall include the imposition of a minimum term. The minimum term shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater, or 18 months in the case of a fourth degree crime, during which the defendant shall be ineligible for parole. The minimum term established by this subsection shall not prevent the court from imposing a presumptive term of imprisonment pursuant to paragraph (1) of subsection f. of N.J.S.2C:44-1 except
in cases of crimes of the fourth degree.

(cf: P.L.2007, c.341, s.5)

7. This act shall take effect immediately.

STATEMENT

This bill would permit the sealing of certain criminal records. Under the bill, any person convicted of a crime of the third degree or a crime of the fourth degree under the laws of this State, who for a period of five years from the date of his last conviction, payment of fine, satisfactory completion of probation or release from incarceration, whichever is later, has not been convicted of any subsequent crime whether in this State or any other jurisdiction, or of any other disorderly persons or petty disorderly persons offense, and no charges are currently pending, may petition the Superior Court in the county in which each conviction was entered seeking to have all convictions involving a disorderly persons offense, a petty disorderly persons offense, a crime of the third degree, or a crime of the fourth degree, and all records and information related thereto sealed. Petitions for an order to seal records of convictions for disorderly persons offenses and petty disorderly persons offenses may be made after a period of three years, and petitions for an order to seal records of municipal ordinance violations may be made after a period of one year. The provisions of this bill would not apply to records of convictions for crimes of the first or second degree.

"Sealing" would mean that all index references would be marked "not available" or "no record" and law enforcement officers and departments would reply and the person could reply to any inquiry that there is no record with respect to such person. Sealed records would include complaints, warrants, arrests, commitments, processing records, fingerprints, photographs, index cards, "rap sheets," judicial docket records, and correctional, probation and parole records.

If, within five years of the entry of an order to seal records, the person granted the order is convicted of a crime or offense, the order would be nullified and the person would be subject to a fine twice that otherwise applicable to the subsequent offense and a sentence of imprisonment with a minimum period of parole ineligibility. Additionally, any other penalty imposed by the court other than a fine or a term of imprisonment could be doubled. Nothing would prohibit the person from subsequently petitioning for an order to expunge the record or from subsequently petitioning for an order to seal records. Prior to granting an order to seal records, the court must notify the person orally and in writing of the consequences of a subsequent conviction.

A petition for an order to seal records would include the petitioner's date of birth and dates of arrest, the statutes and offenses for which petitioner was arrested and of which petitioner was convicted, the original indictment, summons or complaint number, the petitioner's dates of conviction or dates of disposition of the matter if no conviction resulted, and the court's disposition of the matter and the punishment imposed, if any. The petition would also include an affidavit or verification that there are no disorderly persons, petty disorderly persons, or criminal charges pending against the petitioner at the time of filing.

The bill would require that a copy of each petition upon the Superintendent of State Police, the Attorney General, the county prosecutor of the county wherein the court is located, the chief of police of the municipality wherein the offense was committed, the chief law enforcement officer of any other law enforcement agency that participated in the arrest of the individual, the superintendent or warden of any institution in which the petitioner was confined, and, if a disposition was made by a municipal court, upon the judge of that court.

The court would be permitted to enter an order to seal records if there is no objection prior to the hearing from those law enforcement agencies notified or from those offices or agencies that are required to be served. However, even without an objection, the court may deny the petition to seal records if the court concludes that petitioner is otherwise not entitled to relief.

This bill would amend N.J.S.2C:43-3 to authorize the imposition of a fine of up to twice the amount that would ordinarily apply to an offense if the offender is convicted within five years following the entry of an order to seal records.

This bill would also amend N.J.S.2C:43-6 to provide that, if an offender is convicted of a crime within five years following the entry of an order to seal records, the offender would be subject to a minimum term of imprisonment during which the offender would be ineligible for parole. The minimum term of imprisonment would be fixed at, or between, one-third and one-half the sentence imposed by the court or three years, whichever is greater, or 18 months in the case of a crime of the fourth degree.

The sponsor recognizes that sealing records does not have the effect of expungement, nor does the bill alter the requirements of the expungement statute. It is the sponsor's intent to provide offenders who have maintained a clean record for a significant period of time following their release from supervision the ability to seek employment opportunities without the need to make reference to past criminal involvement in certain instances.