The New Jersey Appellate Division recently held in In the Matter of the Expungement of the Criminal Records of H.M.H., that a person’s record containing an arrest and conviction for an act of domestic violence could be expunged.

The facts of the matter are straightforward – H.M.H. and his wife argued over their autistic son until H.M.H. struck his wife on her forehead with a closed fist that caused bleeding from the ring he wore. The police responded to the incident and H.M.H. ultimately pled guilty to an amended charge of simple assault, a disorderly persons offense. He was sentenced to one-year of probation conditioned upon male domestic violence counseling, no contact with the victim, payment of restitution and penalties and assessments. H.M.H. successfully fulfilled the conditions and had no subsequent arrests or convictions when he sought to have the arrest and conviction record expunged.

 

In granting the expungement request, the Court first considered N.J.S.A. 2C:53-14(b), which allowed it to deny H.M.H.’s request if “the need for the availability of the records outweighs the desirability of having a person freed from any disabilities as otherwise protected in this chapter . . . and the burden of asserting such grounds shall be on the objector.” The prosecutor argued that because N.J.S.A. 2C:58-3(c)(1) and the Lautenberg Amendment to the Federal Gun Control Act of 1968 established a public policy that persons who commit acts of domestic violence should not have hand guns, H.M.H.’s request for expungement should be denied so that law enforcement agencies would be aware of his history of domestic violence when reviewing an application for a gun permit. 

 

By contrast, H.M.H. argued that such a need was inconsistent with the intent of New Jersey’s legislature, which had failed to pass a law prohibiting the expungement of records containing acts of domestic violence despite the proposal of such a law during the prior six legislative sessions. The Court also noted a variety of other reasons for granting H.M.H.’s request. First, it noted that law enforcement agencies considering firearm licensing applications may not utilize expunged records in limited instances set forth by statute, including when determining whether to grant or deny acceptance into a supervisory treatment or diversionary program; for purposes of sentencing or setting bail; and for evaluating the granting of parole. Second, it reasoned that persons with expunged records are expressly required to reveal the information contained in such records when applying for a job with the judicial branch or with a law enforcement or corrections agency. 

 

Third, the Court determined that, based on the questions set forth on the application to obtain a firearms purchaser identification card that the application itself acknowledged that one convicted for a domestic violence offense could be licensed to own a firearm. Fourth, the Court determined that, because the Appellate Division’s opinion in State v. Wahl, 365 N.J. Super356 (App. Div. 2004), held that the Lautenberg Amendment provided that “if the conviction has been expunged or set aside, a person shall not be considered to have been convicted of such an offense,” expungement was available under state law as well in the absence of a specific bar to the contrary.

 

The Court added that, while a single act of domestic violence could, under certain circumstances, weigh against expungement, it would not deny H.M.H.’s request where the incident at issue had occurred more than ten years earlier and appeared to be an “aberration” in his life.

 

Although H.M.H.’s petition for expungement was granted, the Court’s rationale in so holding demonstrates that it believes that there are enough safeguards in place via statute and otherwise to protect society at large from persons with such convictions should that person seek to obtain a firearm. Without such safeguards, and perhaps in a scenario different from the single instance above, the Court very well might have ruled otherwise.

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