### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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IN THE MATTER OF THE EXPUNG E MENT PETITION OF R.B.T.

______________________ _ _ _

Argued September 14, 2020

– Decided
Before Judges Messano, Hoffman and Smith.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Accusation No. 18

- 02

- 0149.
Carey J. Huff, Assistant Prosecutor, argued the cause for appellant State of New Jersey (Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney; Carey J. Huff, of counsel and on the brief).

Charles J. Uliano argued the cause for r espondent R.B.T. (Chamlin, Uliano & Walsh, attorneys; Charles J. Uliano, of counsel; Andrew T. Walsh, on the brief).

PER CURIAM

R.B.T. was a m unicipal c ourt j udge in nine towns in Monmouth County :
Union Beach, Oceanport, Colts Nec k, Tinton Falls, Rumson, Neptune City,
Bradley Beach, and Eatontown. R.B.T. pled guilty to committing numerous NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not " constitute precedent or be binding upon any court ." A lthough it is posted on the internet
, this opinion is binding only on the parties in the case and its use in other cases is limited

. R

. 1:36

- 3.

October 14 , 20202 A

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illegal acts on multiple occasions in his capacity as a judge

. He convert ed all or
part of municipal court defendants ' suspended fines to contem pt of court fines
without a legal basis. He issued municipal defendants contempt of court fine s
for being late without confirming if they were late, nor did he give " late "

defendants a n opportunity to explain. Further, R.B.T. issued defendants
contempt of court fines for disobeying prior court order s without confirming

that such prior orders existed. He also suspended fines and converted them to
contempt of court fines after defendant s left court

. Also, on some occasions,

when R.B.T. accepted an affidavit from attorney s on behalf of their client , he
would suspend the fine and convert it to contempt of court after the attorney left

the room

. On one occasion, he threatened a defendant who questioned a
contempt assessment with jail when that defe ndant stated that he wanted a
lawyer.

R.B.T. ' s converted fines did not go to him personally, but the improper

fines helped him get appointed to various municipal judgeships

. R.B.T. knew
that Monmouth County and the towns he served shared fine money equal ly from

motor vehicle tickets. H e also knew 100% of the contempt of court fines go to

the town and are not shared with the county

. Thus, by suspending mandatory3 A

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fines and converting those fines to contempt of court sanctions, R.B.T. diverted
money away f

rom Monmouth C ounty to the towns.

As a result of his improper scheme , the towns received more than their

fair share of fine revenue from fines

. Thus, R.B.T. " guaranteed future
appointments to the bench " by converting fines to contempt fines and securing
more money for the towns tha n they otherwise would have received. R.B.T. ' s
illegal actions resulted in $1.2 million dollars of ticket

- related revenue
, $600,000 of which was improperly diverted to the town s.
After investigating R.B.T. ' s conduct, the Monmouth County Prosecutor ' s

Office had him arrested and charged with falsifying records. In exchange for his
guilty plea, the prosecutor allowed R.B.T. to apply for Pre

- Trial Intervention

( PTI )

. 1 As part of h is plea deal, R.B.T. also agreed to forfeit public office. After

R.B.T. successfully completed PTI, the court dismissed the fourth

- degree
charge. R.B.T. then moved for an expungement of the criminal records relating

1 PTI is a diversionary program where certain offenders can avoid criminal prosecution by receiving early rehabilitative services expected to deter future behavior. State v. Roseman , 221 N.J. 611, 621 (2015). The Criminal Division Manager must recommend an offender and the prosecutor must give consent for an offender to be admitted into PTI. I bid.4 A

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to the arrest and subsequent admission into PTI six months after completion of
PTI as required by statute. 2

The State objected to the expungement petition

. Judge Jill O ' Malley heard
oral argument and explained her reasons for ordering the expungement in a
thorough written opinion.

The State presents the following arguments on appeal:
(1) The trial court erred in determining the State was precluded from objecting to the expungement because it did not object to PTI following a guilty plea.

(2) T he trial court was incorrect that the investigation reports are not expunged; and

(3) T he State met its burden to show that the need for the records outweighed defendant ' s interest in relief.
Following our review of the record and the parties ' briefs , we affirm the trial

court ' s order granting expungement. However, w e remand for the limited
purpose of identifying which records associated with R.B.T. ' s arrest and
subsequent admission into the PTI Program are to be expunged
, and which
records, if any, are to be excluded from the expungement order.

Prosecutors enjoy wide discretion in making determinations on PTI
applications under N.J.S.A. 2C:43

- 12. State v. Baynes , 148 N.J. 434, 443

2 See 2C:52

- 6(c)(1).5 A

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(1997). Courts will generally not overturn a prosecutor ' s decision to permit a

criminal defendant ' s admission into PTI. Baynes , 148 N.J. at 443

- 44. Such
prosecutorial discretion is afforded " enhanced deference " by our courts. State

v. Baynes , 148 N.J. 434, 443 (1997); State v. Wallace , 146 N.J. 576, 589 (1996);

State v. Nwobu , 139 N.J. 236, 246 (1995) ( c iting State v. Kraft , 265 N.J. Super.

106, 111

- 12 (1993)); s ee also State v. DeMarco
, 107 N.J. 562 (1987).

N.J.S.A. 2C:52

- 6(a) sets forth the criteria for expungement of arrest
records not resulting in convictio n, including under circumstances where a
person has successfully completed PTI and the original charge has been

dismissed. The relevant section of the statute reads as follows:

a. When a person has been arrested or held to answer for a crime

. . . under t he laws of this State or of any governmental entity thereof and proceedings against the person were dismissed, the person was acquitted, or the person was discharged without a conviction or finding of guilt, the Superior Court shall, at the time of dismiss al, acquittal, or discharge, or, in any case set forth in paragraph (1) of this subsection, order the expungement of all records and information relating to the arrest.

[ N.J.S.A. 2C:52

- 6 (a)]
After being admitted into and successfully completing a super visory
program, an applicant must wait six months after the entry of the order of

dismissal to apply for expungement. N.J.S.A. 2C:52

- 6(c)(1). Upon completion6 A

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of this waiting period the applicant is presumptively entitled to expungement.

In re Kollman , 2 10 N.J. 557, 570 (2012) (citing In re Expungement Petition of

D.H. , 204 N.J. 7, 18 (2010)).

We consider de novo the trial court ' s interpretation of the expungement

statute. Kollman
, 210 N.J. at 577

- 78 (2012) (applying de novo standard of review

to questions of interpretation of the statute governing expungement of criminal

records ); In re Expungement of the Criminal Records of R.Z.
, 429 N.J. Super. 295,

300 (App. Div. 2013). However, we are obl iged to give deference to the factual
findings of the trial court

. See
, e.g. , In re Civil Commitment of R.F.
, 217 N.J. 152,

174

- 75 (2014).
The initial burden of proof for an expungement is on the applicant. In re

D.H

. , 204 N.J. at 18. The applicant " has the burden to satisfy the requirements
of the expungement statute by a preponderance of the evidence. " Ibid. Once
the applicant has satisfied the requirements of the expungement statute, they are
presumptively entitled to expunge ment and the burden then shifts to the State.

Kollman , 210 N.J. at 570. " To meet its burden, the State ha[s] to demonstrate
some cause for denial by a preponderance of the evidence. " Ibid.
The Legislature has established multiple grounds for denial of a petition
of expungement. N.J.S.A. 2C:52

- 14 , provides, in relevant part:7 A

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b. The need for the availability of the records outweighs the desira bility of having a person freed from any disabilities as otherwise provided in this chapter. An application may be denied under this subsection only following objection of a party given notice pursuant to N.J.S.2C:52

- 10 and the burden of asserting such gro unds shall be on the objector.

Ibid

. The grounds for grant or denial of expungement set forth in the statute require
proofs. Thus, we must defer to a trial court ' s factfinding with respect to whether
petitioner met his burden, establishing a case for expungement, and whether the

State met its burden in opposing the application. Kollman
, 210 N.J. 557, 577

-

79 (applying abuse of discretion standard of review to public interest

determination for criminal expungements after five years); see also In re Appeal

of the Denial of the Application of Z.L.
, 440 N.J. Super. 351, 355

- 56 (App. Div.

2015) (applying deferential standard of review to trial court denial of firearms

pur chaser identification card (FPIC) because " issuance would not be in the

interest of the public health, safety or welfare " under N.J.S.A. 2C:58

- 3(c)(5) (internal quotation marks and citation omitted)).8 A

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A judicial determination that expungement should be gra nted does not,
however, end the inquiry. See In re D.H. , 204 N.J. at 21. The next question is,
what happens to the various records related to the expunged charge? Under

N.J.S.A. 2C:52

- 1, expungement is defined as " the extraction, sealing,
impounding, or isolation of all records on file. " N.J.S.A. 2C:52

- 1(a). When the
court orders an expungement, records are extracted and isolated, but not
destroyed. Kollman , 210 N.J. at 568. Expunged records shall include
complaints, warrants, arrests, commitments, processing records, fingerprints,
photographs, index cards, " rap sheets
, " judicial dockets and related items.

N.J.S.A. 2C:52

- 1; Kollman , 210 N.J. 557, 568

- 69

. The Supreme C ourt in In re D.H

. found that the legislature " foresaw instances
where expungement could be granted, but in the exercise of legislatively guided
judicial discretion, something less than all of the records resulting from petitioner ' s

arrest and conviction w ould be subject to the expungement order. " 204 N.J. at 2 1

.
The State ' s initial argument, that it was precluded by the trial judge from
objecting to expungement because it consented to PTI, misreads the trial judge ' s
well written opinion. Prosecutors en joy wide discretion on PTI admissions, and
the trial judge noted that the State did not object to this PTI application

. The

State ' s authority to consent to an applicant’s admission into PTI and pave the9 A

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way for later dismissal of the charges is given enha nced deference by our courts.

Baynes , 148 N.J. at 443

- 44. A thorough review of Judge O ' Malley ' s opinion
reveals no language barring the State from objecting to expungement. The judge
simply noted that the State elected to exercise its prosecutorial discretion and

consent to R.B.T. ' s entry into PTI. 3 Having done so, the State is charged with
understanding that a presumption exists in favor of expungement where there

has been dismissal of criminal charges. See Kollman , 210 N.J. at 570. The trial
judge found that R.B.T. met his initial burden on expungement

. The judge then
gave the State full and fair opportunity to oppose expungement. W e see nothing

in the record to suggest otherwise.

Once R.B.T. met his burden of proof on expungement, the burden shifted
to the State to overcome the presumption in favor of expungement by a
preponderance of the evidence. The State did not do so ; consequently, point
three of its argument on a ppeal fails. The State ' s opposition to the expungement
was primarily grounded in N.J.S.A. 2C:52

- 14(b). It argued that public

3 Judge O’Malley wrote: " [I]f the State was concerned with preserving Petitioner's matter for posterity than(sic) it should not have offered or granted admission into PTI in the first place. By doing so, the State all but guaranteed expungement under N.J. S.A. 2C:52

- 6(a), which was in place at the time PTI was offered to Petitioner. The State cannot cry foul on a situation of their own doing."10 A

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availability of the records associated with R.B.T. ' s criminal case " would help
clarify " individual municipal court cases " mishand led " by R.B.T. It further
argued that this interest outweighed the desirability of having R.B.T. freed from
the disabilities of having a criminal record

. The trial judge rejected the 2C:52

- 14(b) argument, noting that the State offered no specific evidenc e of any
ongoing litigation or investigation regarding the municipal court cases affected
by R.B.T. ' s illegal acts. Finally, the State argued that the public " has a right to

know " how the justice system handled R.B.T. ' s crimes.

The court di d not find the public interest " right to know " argument
persuasive
, noting that the wide media coverage of R.B.T. ' s arrest and court
appearances and the digital public record attached to R.B.T. ' s name would
satisfy the public ' s " right to know "

. We will no t substitute our judgement for

the trial court ' s if th e ruling was within a range of acceptable decisions.

Kollman , 210 N.J. at 577.

" The question of whether expungement should be granted is different in
both form and substance from the separate but rela ted question as to the reach
of any resulting order of expungement. " In re D.H. , 204 N.J. at 20

- 21. Although

the trial court stated that " the underlying reports or evidence secured during the
investigation " were not sought to be expunged
, " presumably by R.B.T.
, it is11 A

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unclear precisely what reports or evidence are being referred to on the record
presented. When a court grants expungement, there can be circumstances where
less than all records should be extracted, sealed, isolated, or impounded. In re

D.H. , 204 N.J. at 21.
We remand the matter to the judge to conduct a hearing to clarify with
specificity which records will and will not be expunged. We leave the conduct
of the hearing to the sound discretion of the judge. Such a hearing is consistent

with the principles espoused by the Supreme Court in In re D.H

. Affirmed as to the order granting expungement. Remanded to the trial

court for a h earing on what records relating to R.B.T. ' s case , if any, are to be
exempt from the expungement order.

Affirmed and remanded. We do not retain jurisdiction.