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A school bus driver who was fired when his employer learned that in 1992 he paid an $80 fine for — and thereby unwittingly pleaded guilty to — public lewdness has successfully had the conviction removed from his record via a petition for a writ of coram nobis. Kevin Dean had worked for the state of New Jersey for 17 years when private investigators uncovered his 12-year-old criminal record. Dean had been arrested at Brooklyn’s Gerritsen Inlet by a U.S. Park Police officer for public lewdness on Feb. 12, 1992. The officer issued a violation notice and released him. Dean claimed that the officer told him that if he paid the fine, the case would “fall off [his] record in a few years and no one would know about this little incident,” according to the present decision, Dean v. United States, 05-CV-1496. Dean mailed in a check shortly thereafter. The issue died away for more than a decade, until New Jersey hired a private agency to perform background checks. The agency discovered Dean’s arrest and his payment of a fine, which the federal government — and more importantly, New Jersey — treated as a guilty plea and conviction. New Jersey officials dismissed Dean from his job and informed him that his only means of recourse entailed having the conviction expunged from his record. Dean filed a petition for a writ of coram nobis. Such petitions ask a court to provide relief from a judgment based on facts not previously entered into the record. Applying a three-part test, Eastern District Judge David G. Trager granted the petition. A petitioner must establish the existence of “circumstances compelling such action to achieve justice,” reasons for failing to seek timely relief and continued legal consequences from the conviction, according to the decision. “Dean clearly merits this burden,” Trager wrote. “The 1992 Violation Notice does not explain that there was the potential for a conviction to remain on his record permanently … However, after the discovery by the private agency some eleven years after his arrest, Dean lost his job because his employer considered the payment an indicator of a conviction.” Trager wrote. “Given these circumstances, Dean has demonstrated the required ‘compelling circumstances.’” Those same facts also fulfilled the requirement of “sound reasons” for a delay. Finally, Dean’s disqualification from his job constitutes an ongoing legal consequence of the conviction, Trager ruled. The government argued among other things that the payment of the fine constituted a guilty plea. Trager disagreed. “[T]o be a valid plea,” he wrote, “Dean must have made a knowing waiver of his rights.” The government also argued that “allowing a litigant to challenge a petty offense conviction that was achieved pursuant to the procedures outlined in [a federal rule] would potentially call into question every offense and misdemeanor that has been handled under [the rule's] procedures for permitting defendants to pay a fine in lieu of appearing in court,” according to the decision. Trager called that suggestion “somewhat overblown.” “Treating these prior Notices of Violations as a non-conviction would impose no burden on the government that the court can envision,” he stated. “In the future, the government can easily alter the notice form to give clear notice that by paying the collateral amount the recipient is subject to having a Class B misdemeanor conviction on his or her permanent record.” Dean’s attorney, Manhattan solo-practitioner Paul B. Dalnoky, said the decision “stands for the proposition that no matter how late in the day it is [prosecutors] have to show … the full ramifications of [a plea], especially in the federal court.” He added that Dean will not be automatically reinstated but rather must apply for his job anew. Steven M. Warshawsky represented the U.S. Attorney’s Office. A spokesman said that attorneys from that office are still reviewing their options.

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