Opinion
Argued January 14, 1986 —
Decided January 27, 1986.
On appeal from the Superior Court, Law Division, Monmouth County, Kennedy, J.
Before Judges ANTELL, SHEBELL and MUIR.
Stephen H. Monson, Deputy Attorney General, argued the cause for appellant ( Irwin I. Kimmelman, Attorney General of New Jersey, attorney; Stephen H. Monson on the brief).
Gregory Coben argued the cause for respondent ( Gregory Coben, attorney).
In August 1977 petitioner was convicted of embezzlement, N.J.S.A. 2A:102-5, pursuant to a waiver of indictment in the municipal court. In January 1985 he filed this petition for expungement of the record of the foregoing conviction under N.J.S.A. 2C:52-3. This enactment permits the relief requested after the expiration of five years following conviction for disorderly conduct. N.J.S.A. 2C:52-2 is applicable to convictions for indictable offenses and requires a lapse of ten years. However, the Law Division concluded that the status of the offense must be determined as of the date of the petition for expungement and, since N.J.S.A. 2C:20-2b(3) now designates the infraction as disorderly conduct, it determined that the five year, not the ten year, waiting period is applicable. The State appeals. We affirm substantially for the reasons stated by Judge Kennedy in his oral opinion of April 3, 1985, for the Law Division.