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N.J. Superior Court, Appellate Division CRIMINAL PRACTICE – Expungement – Tort Claims Act State v. J.R.S., A-3453-06T5; Appellate Division; opinion by Fuentes, J.A.D.; decided and approved for publication January 22, 2008. Before Judges Coburn, Fuentesand Chambers. On appeal from the Law Division, Somerset County, Expungement No. 05-161. DDS No. 14-2-9453 [7 pp.] The New Jersey State Police arrested petitioner J.R.S. and charged him with driving while intoxicated, refusing to take a Breathalyzer examination, and resisting arrest. The Warren Township municipal court later dismissed the charges. Shortly thereafter, petitioner sent a notice of tort claims under N.J.S.A. 59:8-8 to the superintendent of the New Jersey State Police in connection with his arrest. He then filed a petition for expungement. He did not mention the tort claims notice in the filing papers. The Somerset County Prosecutor’s Office notified the trial court that the state did not object to the application for expungement. Expungement of the resisting-arrest charge was granted. (Motor vehicle offenses are not subject to expungement.) Petitioner then filed a civil suit against the state troopers who arrested him and the State Police superintendent, alleging that the troopers stopped him without probable cause, used excessive force and physically assaulted him. The prosecutor’s office then filed a motion to vacate the expungement under N.J.S.A. 2C:52-14(d) because petitioner’s arrest is the subject of civil litigation between him and the state. The trial court agreed and granted the state’s motion. Petitioner now appeals. Held:Filing a notice of tort claim does not commence “civil litigation.” Thus, it does not trigger the bar against granting an expungement in N.J.S.A. 2C:52-14(d) and is not a ground for vacating an expungement order under 2C:52-26. Further, enforcement of the expungement will not deprive the state of information needed to defend itself against plaintiff’s allegations. N.J.S.A. 2C:52-26 contains only two legal grounds for vacating an expungement order: (1) charges were pending against the individual at the time of the petition or hearing that were not revealed to the court; or (2) there was some other statutory disqualification at the time of the petition or hearing. If either of these circumstances exists, the court must vacate the expungement and reconsider the original motion in light of the previously undisclosed information. N.J.S.A. 2C:52-14(d) provides that a petition for expungement shall be denied when the arrest or conviction sought to be expunged is the subject of civil litigation between the petitioner and the state or one of its instrumentalities. The court says “civil litigation” speaks to a pending civil action in a court of law. Although the filing of a tort claims notice is an indispensable jurisdictional prerequisite to the prosecution of common-law tort claims against a public entity, the mere serving of this notice on the public entity does not amount to the commencement of “civil litigation,” which in this context, is commenced by the filing of a pleading by the plaintiff. Potential future litigation or notice of intent to commence a civil suit at some future time are not grounds for denying a petition for expungement under 2C:52-14(d). Further, enforcement of the expungement judgment will not deprive the state of information needed to defend itself against plaintiff’s allegations. Expunged records are not destroyed; they remain available for certain limited purposes, including to satisfy discovery obligations in a civil suit. Petitioner’s arrest records would fall squarely within the purview of the discovery provisions of 2C:52-19. – By Judith Nallin For appellant – Joel I. Rachmiel. For respondent – Eric Mark, Assistant Prosecutor (Wayne J. Forrest, Somerset County Prosecutor; Jamin Cooper, Assistant Prosecutor, on the brief).

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