A state appeals court on Monday laid down some ground rules for deciding whether two related but nonconcurrent crimes are eligible for expungement.
The Appellate Division reversed an order expunging convictions relating to a Medicaid-fraud scheme, finding the petitioner did not meet his burden of proving the underlying acts were concurrent.
At issue in In re R.Z., A-4253-11, is the meaning of N.J.S.A. 2C:52-2(a), which allows expungement of an indictable conviction only if the petitioner “has not been convicted of any prior or subsequent crime[.]“
R.Z., a medical-office manager, pleaded guilty to one count of second-degree theft by deception, admitting he obtained $75,000 for unneeded lab tests between Aug. 26 and Dec. 22, 1995.
He also pleaded guilty to one count of second-degree money laundering, admitting he paid more than $800,000 to parties that never provided goods or services, to conceal criminal activity, between Sept. 6 and Dec. 16, 1995.
He was sentenced to a total of six years in jail in 1999.
In 2011, R.Z. moved in Monmouth County for expungement of the theft and money-laundering convictions. The county prosecutor claimed R.Z. was ineligible because he was convicted of a prior or subsequent crime.
Superior Court Judge John Mullaney granted expungement, holding that R.Z.’s two crimes were part of “an ongoing criminal scheme” and the date range for the money laundering, Sept. 6 to Dec. 16, 1995, was “subsumed” in the period of the theft, Aug. 26 to Dec. 22, 1995.
The state appealed, arguing that expungement is barred by 2C:52-2(a) and by In the Matter of Ross, 400 N.J. Super. 117 (2008). There, an appeals panel held that a petitioner convicted of two crimes that took place at different times could not seek expungement, even if he was convicted and sentenced for the two crimes on the same day.
The prosecutor’s office contended further that N.J.S.A. 2C:1-6c, which provides that an offense involving a course of conduct is deemed to have been committed when the conduct is terminated, should guide the fixing of a crime date for expungement purposes.
Judges Mitchel Ostrer, Carmen Messano, and John Kennedy found that the criminal conduct’s starting date, not ending, date controls, when fixing the date a crime is committed.
“If a continuous theft began a month before a continuous money laundering, but both courses of conduct terminated on the same date, the crimes would be deemed simultaneous for limitations purposes under N.J.S.A. 2C:1-6c, but the theft would have preceded the money laundering for expungement purposes,” Ostrer wrote for the panel.
“A person is not a one-time offender if he embarks on a course of theft on one date, and then a month later decides to engage in another course of criminal conduct, to hide the fruits of his prior thefts, and then concludes all activity simultaneously,” Ostrer wrote.
The panel said a petitioner has the burden of proving his crimes were committed concurrently, one not before or after another. A petitioner’s detailed certification or his prior sworn statements in a plea allocution may, if sufficiently detailed, satisfy his initial burden, and the state may present opposing proofs.
The case was remanded for a hearing on whether R.Z. committed the two offenses concurrently.
R.Z.’s lawyer, Daniel Giaquinto of Kern, Augustine, Conroy & Schoppmann in Bridgewater, says he looks “forward to being able to make our case again.”
Assistant Monmouth County Prosecutor Ian Brater, who represented the state, declined to comment.