Friday, June 3, 2016

Updates on Expungement Law Changes

As people may know, expungement is a tool that permits people to erase criminal histories in state and local criminal history records. It is available mostly to those who have been either charged but never convicted, or convicted of relatively low level offenses like shoplifting, simple assault rather than aggravated assault, defiant trespass and the like. One warning for people who have immigration issues, the Federal government does have access to records that may have been blocked by state or local authorities, so you should consult with an immigration attorney to see whether an expunged offense needs to be reported or not.
Under prior law, ten years must have passed from the date of completion for your conviction (not the date of conviction) while only five years needed pass for convictions in municipal court. This means if you were convicted in 2004, finished jail in 2006, and completed parole and paid off all fines in 2007, then you would wait ten years from 2007, not 2004, if this were an indictable offense.
 Now, you need wait five years for indictable offenses (those that occurred in Superior Court) or three years for municipal court convictions. If it was an ordinance violation, then only two years wait is necessary. Another important change is that the municipal courts are to order records expunged without the required filing of an expungement complaint for $75.00 once a person has completed the terms of a conditional discharge or dismissal or has completed the terms of drug court.
If you were arrested but never convicted, and the charge dismissed, then you can apply immediately. Some grave crimes like murder, kidnapping, child exploitation, child pornography, terrorism and some other listed crimes are not subject to expungement, but other indictable offenses can be expunged. This does not prevent the petition from being denied. Motor vehicle charges such as DUI convictions are also not subject to expungement. Similarly, if you were charged for domestic violence, any charges in criminal court or in municipal court may be expunged, however, if a final restraining order was granted as a civil penalty, that is NOT subject to expungement.

In addition to shortening the period of time one has to wait for an expungement, the new law permits a person to file an expungement petition for an indictable offense and any disorderly persons that may have been included in the charges, at the same time. These offenses must have arisen from the same event however.

Where a charge is brought but there is no conviction, municipal courts will be required to notify defendants that the charges can be expunged without opposition AND without filing a fee for the petition for expungement. Even those people who have had arrest records from before the law takes effect will be permitted to file petitions for expungement without the usual $75.00 fee.

Those people sentenced to drug court may have their entire record expunged after completion of a special probation, provided they have not been convicted of some offense that is non-expungeable as defined under NJSA 2C:52-2(b).
Again, expungements are a one time "get out of jail free" card and cannot be used again. If you were convicted of a crime in a different state or under federal law, this would count against your ability to expunge a New Jersey offense. Also, the Federal government can access these expungements, so for instance, if you expunged a crime for shoplifting, you may still need to explain to a hearing officer the circumstances of the crime if you are filing for any change of status with immigration. Similarly, as mentioned, if you apply for a position in law enforcement or corrections you will still need to explain the circumstances behind the expungement as was mentioned above. However, while it may be considered, it should still be considered as evidence of rehabilitation if the request was granted.

Questions regarding those who are considering careers in law enforcement or corrections
For those who are thinking of entering law enforcement or corrections, you are still legally required to inform the potential employer of an arrest or conviction even when it has been expunged.  See NJSA 2C:52-27. One legal case that concerned an applicant for a police position who had been arrested but never convicted led the Appellate Division to remand a denial of employment based upon an arrest in the applicant's background. In re J.B. 386, N.J. Super. 512 (A.D. 2006) held that, while a police applicant was required to report an arrest that did not lead to a conviction when seeking employment, and such an arrest could be considered a "disability" in hiring, as described in the statute under N.J.S.A. 2C:52-27, the Appellate Division found that the Merit System Board failed to treat the expungement as evidence of the applicant's "rehabilitation" as required under N.J.S.A. 11A;4-1. This meant that, while a person who has been convicted of a crime must make a showing that he or she has rehabilitated him or herself when seeking employment, the expungement for an arrest where there was no conviction should be treated as the required evidence of rehabilitation for purposes of employment. In this case, the Appellate Division did mention that the Merit System Board could weigh other factors, but that they could not consider "rehabilitation" in terms of the expunged arrest, since the application for expungement requires the applicant to show that they have rehabilitated themselves.

Saturday, March 12, 2016

One fact to be aware of when taking a plea on a speeding offense in New Jersey Municipal Courts

When taking a plea on a motor vehicle charge in Municipal Court, people are usually unaware that they face: 1) fines imposed by the municipal court including surcharges; 2) additional surcharges that may be imposed by Motor Vehicles separate and apart from the Municipal Court, which for cases like DUIs can be very steep; the points that are issued by Motor Vehicles as well as points that are issued by insurance companies.

When pleaing to a lesser motor vehicle charge, for instance downgrading a speeding violation, people are aware that they may have an option for a 0 point offense. The most common is the unsafe driving offense, but that is an expensive proposition where you will wind up paying about $439.00 with surcharges. There are other 0 point options available in some counties and in some municipalities but they are not always offered. Local counsel will know best whether there are choices for a 0 point plea other than unsafe driving. And if you do plea to an unsafe driving make sure you have not had two prior unsafe driving convictions in the past five years, otherwise you will face four points, not 0.

Depending upon your driving history a 2 point conviction but be an option. While I have not heard many attorneys discuss this, under New Jersey law, if you have a speeding charge under 15 mph, which is a 2 point offense, the insurance company is not to impose its own surcharges unless you have had a prior conviction within the past three years. If your record is clean, you may wind up paying less than for a 0 point unsafe driving.

The tricky part is the regulation seems to only apply to a 2 point speeding charge. It does not indicate that it applies to other 2 point convictions such as careless driving. Therefore, I would limit using this only in the face of accepting a 2 point speeding charge. Below is the actual citation.

§ 17:33B-14.1. Speeding violations, certain; surcharge unaffected

  • a.  In calculating a surcharge or other differential in rates based on motor vehicle penalty points promulgated by the Director of the Division of Motor Vehicles pursuant to section 1 of P.L.1982, c.43 (C.39:5-30.5), including any surcharge or differential based on the schedule of automobile insurance eligibility points promulgated by the Commissioner of Insurance pursuant to section 26 of P.L.1990, c.8 (C.17:33B-14), an insurer shall not consider any points assessed for a violation of any lawful speed limitation where the violator exceeded the speed limitation by less than 15 miles per hour, except that, the insurer may consider any such violations, in excess of one violation, of which the insured has been convicted in the three-year period immediately preceding the issuance or renewal of the policy. This section shall only apply to violations that occur on or after the effective date of this act, but shall in no case apply to a violation of subsection a. of R.S.39:4-98.
  • b.  As used in this section, “insurer” means and includes an insurer writing private passenger automobile insurance in the voluntary market and any insurance plan established to provide private passenger automobile insurance pursuant to section 1 of P.L.1970, c.215 (C.17:29D-1)


N.J. Stat. § 17:33B-14.1

Thursday, February 11, 2016

Changes coming up in New Jersey's laws regarding expungement

As people may know, expungement is a tool that permits people to erase criminal histories in state and local criminal history records. It is available mostly to those who have been either charged but never convicted, or convicted of relatively low level offenses like shoplifting, simple assault rather than aggravated assault, defiant trespass and the like. One warning for people who have immigration issues, the Federal government does have access to records that may have been blocked by state or local authorities, so you should consult with an immigration attorney to see whether an expunged offense needs to be reported or not. People planning to enter law enforcement or to practice law will also be required to report arrests or convictions regardless of an expungement. The relevant legal provision is NJSA 2C:52-1 through 52-32.

Under present law, ten years must have passed from the date of completion for your conviction (not the date of conviction) while only two years need pass for convictions in municipal court. If you were arrested but never convicted, and the charge dismissed, then you can apply immediately. Only three petty disorderly or disorderly persons charges can be dismissed, and you can only use an expungement one time. Serious crimes are not subject to expungement, Motor vehicle charges are also not subject to expungement. This includes convictions for DUIs.

In addition to shortening the period of time one has to wait for an expungement, the new law that is slated to go into effect this April, a person will be able to petition to expunge an indictable offense and disorderly persons that may have been included in the charges, at the same time. The waiting time to seek to expunge a disorderly person's offense will be lowered from five years to three years.

Where a charge is brought but there is no conviction, municipal courts will be required to notify defendants that the charges can be expunged without opposition AND without filing a fee for the petition for expungement. Even those people who have had arrest records from before the law takes effect will be permitted to file petitions for expungement without the usual $75.00 fee.

Those people sentenced to drug court may have their entire record expunged after completion of a special probation, provided they have not been convicted of some offense that is non-expungeable as defined under NJSA 2C:52-2(b). These include crimes like murder, rape, child pornography, aggravated sexual assault and kidnapping.

The bill was signed into law by Governor Christie in January 2016.


Thursday, January 21, 2016

How do the recent changes in the alimony laws in NJ affect you?

This article summarizes some of the recent changes and how they modify past law on the awarding of alimony

1.  What happened to permanent alimony under the revised NJSA 2A:34-23

What used to be permanent alimony is now going to mainly consist of open durational alimony unless one has been married for twenty years or more. The recent changes in the law limit alimony to the length of the marriage for those married nineteen years or less.

2.  What are the other types of alimony in NJ?

Rehabilitative alimony is described as alimony paid to the awarded spouse to permit that person to enter the work force or to upgrade his or her employable skills. Reimbursement alimony is awarded for the spouse who may have paid for the education of their partner to get a trade or degree. For instance if one spouse paid for the other to get a law or medical degree, that spouse is entitled to reimbursement. The court weighs factors in deciding what type of how much support should be provided. These may include the need and ability to pay of the parties; the age, physical and emotional health of the parties; earning capabilities; amount of time out of the job market and other factors, Added to the revised law was the consideration of any pendite lite support that may have been paid by one spouse to the other. Pendite lite support means any spousal support that came before the judgment of divorce. The court must also provide specific findings of fact when making an alimony award and cite the statutory factors that were relevant and the weight employed.

3.  What is the guideline for the length of alimony awarded?

The biggest change in the law was that for any marriage (or civil union) less than 20 years in duration, the alimony will not exceed that of the length of the marriage or civil union except in exceptional circumstances. This means if you were married for nineteen years expect nineeteen years of alimony whereas if you were only married for five years, the award could not exceed five years of alimony. The court is also to consider factors such as the need to maintain separate households and other factors concerning each parties future standard of living, post divorce. An exceptional circumstance where the court may exceed the durational limits is where one spouse has a chronic illness; where one party received a disproportionate share in equitable distribution; the role of being a caretaker for a child, and a variety of other factors.

4.  How does retirement affect alimony?

Previously to the recent change in the law, when an obligor spouse is ready to retire, that person must file a motion with the court showing a change of circumstances requiring a modification of alimony. However, now the statute says there is a rebuttable presumption that alimony may be modified or terminated upon the prospective retirement of the obligor when that person has reached "full" retirement age. Arrearages are not modified but future payments may be modified. If a person seeks to retire before they have reached their full retirement age they shall have the burden of proof by a preponderance of the evidence to show that they wish to retire in good faith. In other words, if your husband is eligible to retire at 65 and he chooses to retire at age 45 to go and live in the Bahamas, that is not a good faith reason to retire. However, a disability that keeps that person from working may be. Other factors may be influential as well, such as employer incentive programs to get employees to retire early in exchange for some benefit, etc.

5.  Does the revised law influence prior alimony awards?

If you were awarded permanent alimony before the law was passed in September 2014, nothing would change the obligor's responsibility to continue payment. Also, if there are provisions in a property settlement agreement or final judgment of divorce that contradict any of these changes, then those terms would remain enforceable. For instance, if a PSA says that the spouse continues to pay alimony post-retirement, then the obligation remains.

6.  Cohabitation

Another major change is the effect of cohabitation. The new section states that the court shall consider the length of time of a relationship in a former spouse's cohabitation in determining if alimony should be suspended or terminated. It adds that a court may not find the absence of cohabitation "solely on grounds that the couple does not live together on a full-time basis."

Additional resources provided by the author

For a full text of the bill see below.




Monday, January 18, 2016

Recent Appellate and Supreme Court decisions involving the DCPP in cases involving allegations of abuse or neglect
As always, cases involving the Division of Child Protection and Permanency are always evolving. Trial courts often ignore decisions that have gone up on appeal to the Appellate or Supreme Court.  One recent decision was D.C.F. v. E.D.-O. 223 N.J.166 (2015). It overruled prior Appellate Division decisions that indicated that the trial court was to take cognizance of a parents' ability to overcome parenting deficiencies at the time that a fact-finding is held. The mother in this case, who had been found negligent in leaving her young child alone in a running car while going into a store some distance away, argued that she should not have been found negligent because 1) there was no proof that the child was harmed; and 2) that there was no proof that the child continued to face a risk of harm by the time that the hearing was held. This was argued after a recent Appellate Division decision implied that a parents' actions in overcoming deficiencies could be used to offset a negligent act that might have precipitated the involvement of the Division. DCPP v. M.C. 435 N.J. Super. 405 (App.Div. 2014). certif. granted 220 N.J. 41 (2014). While rejecting the mother's argument, the Supreme Court did uphold that the trial court must perform a multi-faceted inquiry of the event that precipitated the Title 9 litigation and proceeded to analyze a number of cases where a child had been left alone in different circumstances. While the Supreme Court took umbrage of the propensity of the Division to categorically find that leaving a child alone in a motor vehicle was evidence of neglect, it nevertheless did find that in the circumstance under review it was evidence of a failure to provide minimum supervision. The Supreme Court did not find the argument that the trial court overlooked the situation that the mother was in at the time of the fact-finding, saying that it would permit a trial court to overlook the "aberrational conduct" that led to the Title 9 action in the first place. While not a win for the mother, it did challenge the Division's belief that any showing that a parent leaves a child in a car is evidence of abuse or neglect. The Supreme Court also said that the matter was to be remanded and the focus was to be on the actions the mother took initially not at the time of the fact-finding, but that the mother could still argue that the "totality of circumstances" at that time may still cause a trier of fact to determine that the action was merely negligent, and not grossly negligent.

Oftentimes, courts fail to follow the proper procedures required under Title 9 or Title 30 when considering a fact-finding against a parent, the removal of a child from its parent, or the placement of a child with a non-custodial parent without a proper hearing. The seminal case that held that before a child could be placed with a non-custodial parent was DYFS v. G.M. 198 N.J. 382 (2009). The Supreme Court held that before a placement could be made with the non-custodial parent, a hearing must be held to decide whether it was safe to return the child to the custodial parent. In other words, had the custodial parent remediated the issue that led to the initial removal. A followup case amplified that even if a stipulation had been made that Title 30 services were required under N.J.S.A. 30:4C-12, it still did not find it appropriate to grant custody to the non-custodial parent absent a finding of abuse or neglect against the custodial parent. DYFS v. N.D. 417 N.J. Super. 96 (App. Div. 2010). Having seen cases where trial judges continue to ignore these requirements in some counties, it is extremely urgent that parents make sure they receive proper representation, whether through a public defender or a private attorney to ensure that the courts and the Division comply with the strictures and proof requirements established under the statutes and case law.
Anthony Van Zwaren, Esq.
340 Clifton Avenue
Clifton, NJ 07011
(973) 473-0112 x 1001, tony@avzlawoffice.com