State v. N.T., ___ N.J. Super. ___ (App. Div. 2019). While at the beach with her three year-old son, N.T. became intoxicated. Having gone into the water with her son up to his knees, N.T.’s intoxication prevented her from swimming, and she had to be rescued by another person. N.T. was arrested and charged with endangering the welfare of her child, pursuant to N.J.S.A. 2C:24-4(a). She pled guilty to third degree child endangerment, was sentenced to five years probation, and was admitted into the Drug Court program.
From there, as Judge Currier’s opinion for the Appellate Division today said, N.T. “worked hard to turn her life around.” Having lost custody of her children, she regained custody. She was successfully discharged from Drug Court. She obtained real estate and title insurance licenses. She began pursuing a Masters of Science in clinical mental health counseling at Monmouth University, a degree that would allow her to meet licensing requirements to become an alcohol and drug counselor. She is has also been a sponsor for persons in Alcoholics Anonymous and Narcotics Anonymous.
N.T.’s conviction, however, has impeded her ability to get jobs with an insurance company or a real estate agency. Accordingly, she sough to expunge that conviction. The Law Division denied her application, citing the plain language of N.J.S.A. 2C:52-2(b), which deals with expungement, as barring expungement of her conviction for child endangerment. N.T. appealed, and the ACLU Foundation of New Jersey and the New Jersey Office of the Public Defender supported her as amici. But today the Appellate Division, applying de novo review, affirmed the ruling below.
Judge Currier carefully traced the evolution of N.J.S.A. 2C:52-2(b). The statute, she noted, was intended to “provid[e] relief to the reformed offender who has led a life of rectitude and disassociated himself with unlawful activity.” But it also contained a list of offenses that cannot be expunged. Among those was a conviction under “subsection a. of [N.J.S.A.] 2C:24-4.”
N.J.S.A. 2C:52-2(b) contains a parenthetical after the reference to N.J.S.A. 2C:24-4 that read “Endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child, or causing the child other harm . . . .” Prior to a 2016 amendment, the parenthetical did not include the words “or causing the child other harm.”
N.T. argued that the phrase “or causing the child other harm” refers to “‘other harm’ stemming from sexual conduct.” That argument was based on the presence of only one comma in the entire parenthetical, such that “or causing the child other harm” is a dependent clause that could not stand alone.
The Appellate Division did not agree. “The phrases ‘who engages in sexual conduct which would impair or debauch the morals of a child’ and ‘who causes the child harm that would make the child an abused or neglected child’ are separated by a comma and the word ‘or’ indicates they are disjunctive and refer to a list of two distinct harms.” Since “N.J.S.A. 2C:52-2(b) specifies that convictions under N.J.S.A. 2C:24-4(a) are barred from expungement, the plain language of the statute prevents the expungement.”
Given the facts here, this was undoubtedly a difficult resolution for the Appellate Division to reach. Judge Currier concluded her opinion with these words: “N.T. has admirably transformed her life. But her achievements cannot override the unambiguous expungement statute. The plain language of N.J.S.A. 2C:52-2(b) prohibits the expungement of any conviction under N.J.S.A. 2C:24-4(a).” The Appellate Division is neither the highest court nor the Legislature. The panel thus had to follow the statutory language and the rules of statutory interpretation.