Opinion
DOCKET NO. A-5665-13T1
12-23-2015
IN THE MATTER OF CHARLES DIGREGORIO.
Charles DiGregorio, appellant pro se. Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent State of New Jersey (Samuel J. Marzarella, Supervising Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and O'Connor. On appeal from Superior Court New Jersey, Law Division, Ocean County. Charles DiGregorio, appellant pro se. Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent State of New Jersey (Samuel J. Marzarella, Supervising Assistant Prosecutor, on the brief). PER CURIAM
Appellant, Charles DiGregorio, appeals a provision in the July 11, 2014 order that denied his petition to expunge a 1980 disorderly persons conviction for lewdness. We affirm.
I
On December 10, 1980, appellant was convicted in municipal court of lewdness, N.J.S.A. 2C:14-4, and sentenced to two years of probation and assessed a fine of $275. At the time of his conviction, lewdness was a disorderly persons offense. On February 11, 2008, appellant pled guilty to second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), and on May 9, 2008 was sentenced to a four-year suspended term and parole supervision for life, N.J.S.A. 2C:43-6.4. On April 5, 2013, appellant pled guilty to second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(b)(4), and on June 13, 2013, was sentenced to a six-and-a-half year term of imprisonment.
On May 13, 1992, N.J.S.A. 2C:14-4 was amended to provide that certain acts of lewdness constituted a fourth-degree offense. See N.J.S.A. 2C:14-4(b).
According to the July 11, 2014 order, appellant filed a petition to expunge the records "of his arrests and convictions." A copy of the petition was not provided to us and it is not clear from the record which arrests and convictions he sought to expunge, but it is not disputed appellant sought to expunge the 1980 disorderly persons conviction for lewdness. On July 11, 2014, the court denied appellant's petition in its entirety. The court found N.J.S.A. 2C:52-2, N.J.S.A. 2C:52-3, and N.J.S.A. 2C:52-4.1 precluded the expungement of appellant's convictions because he had two indictable convictions and one disorderly persons conviction.
Appellant appeals only the denial of his request to expunge the disorderly persons conviction. He raises the following contentions for our review.
POINT I — THE STATE'S DENIAL TO EXPUNGE THE 1980 CONVICTION OF APPELLANT IS IN VIOLATION OF THE EX POST FACTO CLAUSEWe reject these arguments and affirm.
POINT II — THE SUPERIOR COURT JUDGE NOT ISSUING A BRIEFING SCHEDULE IS A VIOLATION OF WELL ESTABLISHED DUE PROCESS LAW
We assume appellant intended to say that the court's denial of his expungement application was a violation of the ex post facto clause. --------
II
Of the three statutes on which the trial court relied to deny appellant's petition for expungement, only N.J.S.A. 2C:52-3 is implicated here. N.J.S.A. 2C:52-3 provides:
Any person convicted of a disorderly persons offense . . . under the laws of this State who has not been convicted of any prior or subsequent crime . . . may, after the expiration of a period of 5 years from the date of his conviction, payment of fine, satisfactory completion of probation or release from incarceration, whichever is later, present a duly verified petition as provided in section 2C:52-7 hereof to the Superior Court in the county in which the conviction was entered praying that such conviction and all records and information pertaining thereto be expunged.
Here, there is no dispute appellant filed his petition to expunge the disorderly persons conviction five years after he had been convicted, paid his fine, and satisfactory completed probation. However, between the time of the disorderly persons conviction and the time he filed his petition for expungement, he was convicted of two crimes, one in February 2008 and the other in April 2013. Because he was convicted of these two crimes in addition to the disorderly persons offense, the trial court properly denied appellant's request to expunge the disorderly persons conviction. See N.J.S.A. 2C:52-3.
Our review is hampered by appellant's brief, which is difficult to comprehend. But we fathom he was under the impression the trial court had improperly relied upon N.J.S.A. 2C:52-2(a) to deny his request to expunge the disorderly persons conviction. N.J.S.A. 2C:52-2(a) is the expungement statute that governs when a person has no more than one criminal conviction and no more than two disorderly persons or petty disorderly persons convictions and seeks to expunge the criminal conviction.
Here, there is no indication the trial court applied N.J.S.A. 2C:52-2(a) to deny appellant's request to expunge the disorderly persons conviction. The trial court indicated in its order that it relied, in part, upon N.J.S.A. 2C:52-3 to deny appellant's petition. Given the context, it is clear the trial court relied upon N.J.S.A. 2C:52-3 to deny appellant his request to expunge the disorderly persons conviction.
Appellant does not articulate how the trial court's refusal to expunge the disorderly persons offense under N.J.S.A. 2C:52-3 amounted to a violation of the ex post facto clauses in the federal constitution, see U.S. Const. art. I, § 10, cl. 1, and in the New Jersey constitution, see N.J. Const. (1947) art. IV, § VII, par. 3. Nor does he address how his rights to due process were violated because the court did not issue a briefing schedule. We regard his failure to address or adequately address these issues as a failure to brief them and, therefore, deem these arguments waived. See Pressler & Verniero, comment 4 on R. 2:6-2; see Mid-Atlantic Solar Energy Indus. Ass'n v. Christie, 418 N.J. Super. 499, 508 (App. Div. 2011) (refusing to consider a cursory discussion of an issue because it failed to present the issue raised for the court's consideration).
To the extent that any arguments raised by appellant have not been explicitly addressed in this opinion, it is because we are satisfied that the arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION