First, ask your attorney how to enforce your Expungement Order. What will you do if there is a violation of your Expungement Order?
Then, consider your attorney's answer in conjunction with my experiences trying to enforce my Expungement Order in New Jersey. In short, at least six persons in the New Jersey Criminal Justice System obstructed my nine citizen complaints against five violators in three separate New Jersey counties at both the municipal and superior court levels.
Expungement of Records Statutes
N.J.S. 2C:52-30 and N.J.S. 2C:52-19
Systemic Obstruction of Prosecution of Violators
There is a serious problem with the New Jersey Court system.
The two Expungement of Records statutes (N.J.S. 2C:52-30 and N.J.S. 2C:52-19) are not serving their intended purpose. Persons in the criminal justice system are interpreting these statutes in such a way as to deprive victims of N.J.S. 2C:52-30 violations from relief from the courts.
In 2009 I obtained an Expungement Order pursuant to N.J.S. 2C:52-6. The ink was scarcely dry on the Expungement Order when various members of the criminal justice system who had notice of the Expungement Order began to violate the Order.
N.J.S. 2C:52-30 provides:
Except as otherwise provided in this chapter, any person who reveals to another the existence of an arrest, conviction or related legal proceeding with knowledge that the records and information pertaining thereto have been expunged or sealed is a disorderly person. Notwithstanding the provisions of section 2C:43-3, the maximum fine which can be imposed for violation of this section is $200.00.
None of the N.J.S. 2C:52-30 violations affecting me were authorized by exception provisions to Chapter 52 of N.J.S. Title 2C.
I became so annoyed with being a victim of N.J.S. 2C:52-30 violations that I started filing citizen complaints against the offenders. I filed a total of nine complaints, all which were obstructed and suppressed. Please note that four of the five violators are insiders of the New Jersey Criminal Justice system.
1. THE NANCI ARRAIAL COMPLAINT:
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| Nanci Arraial |
County Municipal Court in Hackensack. On September 16, 2010, Roy F. McGeady, P.J.M.C. (Bergen County) found probable cause and charged Detective Arraial with violating
Upon receipt of my discovery package, Prosecutor Samson telephoned me and advised that he had never seen this type of complaint before, and that he had concerns that he could be charged with violating N.J.S. 2C:52-30 himself if he provided the discovery to defense counsel. Prosecutor Samson advised me to move before the Court that issued the Expungement Order for an Order pursuant to N.J.S. 2C:52-19 Permitting Release of Information, Files and Records Subject to Expungement Order. Prosecutor Samson purported that he needed such an order to prosecute.
My attorney disagreed with Prosecutor Samson's opinion that such an Order was necessary to prosecute, as possession of evidence of a criminal offense and providing copies of same in discovery to the defense is an indispensable part of a prosecutor's duties in a criminal prosecution.
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| John H. Pursel |
N.J.S. 2C:52-19 provides:
Inspection of the files and records, or release of the information contained therein, which are the subject of an order of expungement, or sealing under prior law, may be permitted by the Superior Court upon motion for good cause shown and compelling need based on specific facts. The motion or any order granted pursuant thereto shall specify the person or persons to whom the records and information are to be shown and the purpose for which they are to be utilized. Leave to inspect shall be granted by the court only in those instances where the subject matter of the records of arrest or conviction is the object of litigation or judicial proceedings. Such records may not be inspected or utilized in any subsequent civil or criminal proceeding for the purposes of impeachment or otherwise but may be used for purposes of sentencing on a subsequent offense after guilt has been established.
Judge Rubin denied our Motion, finding that the N.J.S. 2C:52-19 Motion protocol is only available to third parties, and not to defendant/beneficiaries of Expungement Orders. Judge Rubin based his decision on a Conference of Criminal Presiding Judges statewide protocol sheet that he blindsided us with at the Motion Hearing on October 25, 2010. A copy of said protocol sheet, entitled "Providing Copies of Expunged Records," is annexed hereto as Exhibit A.
A plain reading of the protocol sheet clearly shows that said protocol sheet was completely irrelevant to our motion, because said protocol sheet specifically addresses situations where defendants seek copies of their own expunged records. I was not seeking copies of any expunged records. I was seeking an Order pursuant to N.J.S. 2C:52-19 permitting release of information, files and records subject to Expungement Order, so that I could redress violations of my Expungement Order.
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| Exhibit A |
A plain reading of the protocol sheet clearly shows that said protocol sheet was completely irrelevant to our motion, because said protocol sheet specifically addresses situations where defendants seek copies of their own expunged records. I was not seeking copies of any expunged records. I was seeking an Order pursuant to N.J.S. 2C:52-19 permitting release of information, files and records subject to Expungement Order, so that I could redress violations of my Expungement Order.
Judge Rubin purported that he found the third paragraph of the protocol sheet to be controlling. Said third paragraph provides:
The Conference of Criminal Presiding Judges have determined that the restricted access to expunged records outlined in N.J.S.A. 2C:52-15 and 2C:52-19 apply to third party requestors but do not apply to defendants seeking copies of their own expunged records.
Again, a plain reading of the protocol sheet clearly shows that said protocol sheet was completely irrelevant to our motion, because said protocol sheet relates only to situations where defendants seek copies of their own expunged records, which we were not trying to do.
Judge Rubin opined that if Prosecutor Samson wanted a N.J.S. 2C:52-19 Order, he (Samson) should file the Motion himself, on notice to the defendant/beneficiary of the Expungement Order, as opposed to having us file the Motion.
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| Stephen J. Rubin |
I then telephoned Prosecutor Samson to advise Samson of Judge Rubin's findings. Prosecutor Samson was not available, so I left a message. However, Prosecutor Samson did not respond to my telephone message.
On October 28, 2010, I was back in Judge McGeady's courtroom (Hackensack) on a Notice of Motion in the Nanci Arraial matter. I was shocked to learn that the Motion was made by Arraial's defense counsel for an Order to Compel Discovery, or alternatively, an Order Dismissing Complaint. A substitute Prosecutor was covering for Prosecutor Samson on October 28th, who did not appear to be familiar with the Arraial matter.
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| Nanci Arraial |
The combined conduct of Prosecutor Samson, Judge Rubin and Judge McGeady has left me without a remedy for a violation of N.J.S. 2C:52-30.
2. THE JUDGE FRANK W. GASIOROWSKI COMPLAINT:
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| Frank W. Gasiorowski |
While I was completing my paperwork, Deputy Court Administrator Janina Yeager entered the courtroom to ask Court Administrator Carmella A. Sibilia the amount of the deposit needed for the transcript. This prompted Judge Gasiorowski to summon my attorney and me back before the Court.
When we were back before Judge Gasiorowski, the judge requested clarification as to who was trying to file a Complaint against him. My attorney advised Judge Gasiorowski that I wished to file the Complaint. Judge Gasiorowski advised that such a Complaint could not be filed with the Bedminster Municipal Court, and that I would have to take the matter up with his (Gasiorowski's) supervising Judge, Robert Schaul. My attorney objected to said protocol, and argued that since the offense took place in Bedminster, it was proper for the Complaint to be filed in Bedminster, followed by the matter being referred to another court in the vicinage for a Probable Cause Hearing.
At some point during my attorney's argument, Judge Gasiorowski refused to allow him to speak further, and adjourned Court. Immediately upon adjourning Court, Judge Gasiorowski directed his two court officers, Edwin Roberts and Ronald Bleemer, to make sure that my attorney and I immediately left the building. The two court officers did, in fact, eject my attorney and me from the building. This prevented me from filing a Criminal Complaint on August 3, 2010, and from ordering a transcript.
On August 4, 2010, I contacted the Office of Robert F. Schaul, P.J.M.C. (Vicinage 13, Somerset, Hunterdon and Warren counties), and was advised that the Bedminster Municipal Court was, in fact, required to take my Complaint. I was then contacted by Bedminster Municipal Court Administrator Carmella A. Sibilia and advised that I had to return to the Bedminster Municipal Court in person to file my Complaint. On August 5, 2010, I returned to the Bedminster Municipal Court, filed a citizens complaint against Judge Frank W. Gasiorowski, and ordered a transcript. My Complaint was ultimately transferred to the Superior Court of New Jersey, Hunterdon County, Law Division - Criminal Part.
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| Stephen J. Rubin |
Judge Rubin's opinion appears inconsistent with a guilty plea entered by former Jersey City Municipal Court Chief Judge Wanda Molina on June 4, 2010 for fixing parking tickets. But if former Judge Molina had fixed parking tickets in Vicinage 13, which includes Somerset, Hunterdon and Warren counties, Judge Rubin's opinion implies that she (Molina) would have enjoyed absolute immunity.
Judge Rubin's finding in the Judge Gasiorowski matter demonstrates unique issues encountered by victims of violations of Expungement Orders by judges. Nevertheless, I have been left without a remedy for yet another violation of N.J.S. 2C:52-30.
3 & 4. THE RICHARD J. GUSS AND DARYL A. WILLIAMS COMPLAINTS:
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| Richard J. Guss |
On November 18, 2010, I was back in Judge McGeady's courtroom (Hackensack) for Probable Cause Hearings in the Guss and Williams matters. Prior to the hearing I met with Prosecutor Andrew C. Samson to discuss Judge Rubin's October 25, 2010 findings and the need for Prosecutor Samson to personally file any desired Motion for an Order pursuant to N.J.S. 2C:52-19. Prosecutor Samson refused to personally file a N.J.S. 2C:52-19 Motion.
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| Daryl A. Williams |
In doing so, Judge McGeady confirmed for Bedminster Municipal Court Prosecutor Richard J. Guss and Assistant Somerset County Prosecutor Daryl A. Williams that they were free to violate my Expungement Order any time they wanted, with impunity.
The combined conduct of Prosecutor Samson, Judge Rubin and Judge McGeady has left me without a remedy for two more violations of N.J.S. 2C:52-30.
5. THE SECOND DARYL A. WILLIAMS COMPLAINT:
I filed a Complaint with the Borough of Somerville Municipal Court on October 1, 2010 against Assistant Somerset County Prosecutor Daryl A. Williams for Mr. Williams' second violation of my Expungement Order on January 15, 2010. A first appearance took place in Somerville Municipal Court on December 2, 2010.
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| Joseph DeMarco |
Somerville Municipal Court Prosecutor Joseph DeMarco was hostile and obstructionist with me. When I went on the record, William T. Kelleher, Jr., J.M.C. advised that he had to research the law and get back to me.
Judge Kelleher advised me by letter dated January 23, 2011 that he was dismissing the case, because releasing discovery to the defense by Prosecutor DeMarco "would arguably create a violation of [N.J.S. 2C:52-30], similar to the violation alleged against Mr. Williams by [me]." Prosecutor DeMarco offered no input in the matter. Essentially, Judge Kelleher acted as both judge and prosecutor in the matter, apparently in violation of R. 1:15-1 (b).
The combined conduct of Prosecutor DeMarco and Judge Kelleher has left me without a remedy for another violation of N.J.S. 2C:52-30.
6 & 7. THE REFILED RICHARD J. GUSS AND DARYL A. WILLIAMS COMPLAINTS:
On or about January 21, 2011 I received a letter from Bergen County Municipal Court Prosecutor Andrew C. Samson advising me to refile my Complaints vs. Bedminster Municipal Prosecutor Richard J. Guss and Assistant Somerset County Prosecutor Daryl A. Williams, on the condition that I directly supply defense counsel with all responsive discovery, and exclusively communicate with the witnesses and defense as to the substance of the allegations.
Apparently, in response to my letter to the Bergen County Prosecutor complaining of the Guss and Williams matters being improperly dismissed by Roy F. McGeady, P.J.M.C. on November 18, 2010, the Bergen County Prosecutor's Office developed the aforesaid protocol for providing discovery to the defense.
I refiled my Complaints vs. Messrs. Guss and Williams with the Westwood Police Department on February 25, 2011, and the Westwood Municipal Court transferred the Complaints to the Bergen County Municipal Court in Hackensack.
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| Daryl A. Williams |
On March 10, 2011, Judge McGeady found probable cause on the Guss Complaint, and issued a Case Management Order.
On May 12, 2011, Judge McGeady dismissed the Guss Complaint, apparently in response to a motion by Mr. Guss' defense counsel, citing G.D. v. Kenny decided by the N.J. Supreme Court on January 31, 2011 (A-85-09). Although Judge McGeady's Case Management Order provided for me to communicate directly with defense counsel regarding discovery, I was not provided with the motion papers containing the G.D. v. Kenny argument, and was not allowed to speak in opposition to same.
Prosecutor Andrew C. Samson was not in Court on the motion return date, and a substitute prosecutor took his place. The substitute prosecutor did not appear to have a file on the case, and offered only token opposition to defense counsel.
G.D. v. Kenny is distinguishable from my Complaint in that it was a civil complaint alleging defamation, for which the Defendant asserted truth as a defense. My Complaint, on the other hand, was made solely for a violation of N.J.S. 2C:52-30, a part of the New Jersey Code of Criminal Justice, for which the truth defense was not applicable.
In the G.D. v. Kenny decision, the N.J. Supreme Court stated:
To be sure, we are not saying that a government employee bound by an expungement order, or an accomplice, is not subject to liability under the Code of Criminal Justice for an unlawful disclosure of expunged information.
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| Richard J. Guss |
The Bedminster Municipal Prosecutor was served with notice of my application for an expungement order by certified mail; later, after the expungement order was signed, the Bedminster Municipal Prosecutor was served with a copy of the signed and filed expungement order by certified mail. Notwithstanding his receipt of these notices by certified mail, Mr. Guss has committed multiple violations of N.J.S. 2C:52-30 against me.
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| Roy F. McGeady |
8. THE DAVID T. PFUND COMPLAINT:
On April 3, 2011, I filed a Complaint with the Westwood Police Department for a violation of Expungement Order by David T. Pfund, Esq. on March 30, 2011. Mr. Pfund, my attorney and others had received a document containing information subject to my Expungement Order on or about February 1, 2011 from Richard J. Guss, Esq., in Mr. Guss' third violation of my Expungement Order.
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| David T. Pfund |
In response, on February 17, 2011, my attorney put all of the recipients of the unlawful revelation on notice of the existence of the Expungement Order, and provided a redacted copy of the offending document. Nevertheless, Mr. Pfund re-disseminated the unredacted document on March 30, 2011.
Robert P. Contillo, P.J.Ch. (Bergen County) subsequently signed a N.J.S. 2C:52-19 Order on April 4, 2011, authorizing utilization of expunged material in connection with a civil rights lawsuit in which I am the plaintiff. In response, Richard J. Guss requested on April 5, 2011 that Judge Contillo amend his Order to make it retroactive to January 25, 2010, thereby providing immunity for Mr. Guss' various violations of my Expungement Order.
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| Robert P. Contillo |
The Westwood Municipal Court transferred the Complaint to the Bergen County Municipal Court in Hackensack.
I received a notice to appear before Roy F. McGeady, P.J.M.C. for a probable cause hearing on June 9, 2011.
Prior to the June 9, 2011 probable cause hearing, I moved in writing for Judge McGeady to recuse himself from all cases involving violation of my Expungement Order, based on his demonstrated bias against me. I copied Prosecutor Andrew C. Samson on my letter. Judge McGeady advised me that I had no standing to make such a motion, and that such a motion would have to be made by an attorney representing a party, namely, either the defense attorney or the prosecutor representing the State.
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| Roy F. McGeady |
I cited Mr. Samson's past failure to cooperate and communicate with me regarding various complaints before that Court; Judge McGeady's orchestration of the State's disadvantage, and systematic dismissals of all my complaints in that Court with the complicity of Prosecutor Samson; Judge McGeady's denial of my right to speak; various harassment and bullying of me by Judge McGeady's Court Officers; etc., etc., etc. I argued that "the fix has to stop now."
Prosecutor Samson refused to advocate my position, and Judge McGeady declined to recuse himself.
Following the probable cause hearing, Judge McGeady found no probable cause, based on Judge Contillo's Amended Order of April 11, 2011.
The combined conduct of Prosecutor Samson, Judge McGeady and Judge Contillo has left me without a remedy for another violation of N.J.S. 2C:52-30.
9. THE SECOND RICHARD J. GUSS COMPLAINT:
On April 4, 2011, I filed a Complaint with the Westwood Police Department for a second violation of Expungement Order by Richard J. Guss on or about November 10, 2010, and the Westwood Municipal Court transferred the Complaint to the Bergen County Municipal Court in Hackensack.
I received a notice to appear before Roy F. McGeady, P.J.M.C. for a probable cause hearing on June 9, 2011. The matter was not on the calendar when I appeared in Judge McGeady's Court on June 9th. In response to my inquiry, Judge McGeady represented that he had no file for the matter and had no knowledge of it.
I later learned from the Bergen County Municipal Court Office that Judge McGeady had dismissed the Complaint on May 12, 2011, apparently after he dismissed the first Richard J. Guss Complaint, in an unscheduled, ex parte proceeding, subsequent to my having left Judge McGeady's Courtroom.
Nobody from the Court communicated this information to me.
CONCLUSION:
The legislature could not have intended that a victim would be left without a remedy for a violation of his or her Expungement Order. Yet that is precisely what resulted in the above-described situations.
The aforesaid accounts demonstrate that there is a need to promulgate directives to ensure implementation of N.J.S. 2C:52-30 and N.J.S. 2C:52-19.
I filed a total of nine citizen complaints under N.J.S. 2C:52-30 for violations of my Expungement Order. Two municipal court prosecutors, one Superior Court judge and two municipal court judges obstructed prosecution of the violators. A second Superior Court judge provided one of the violators with a defense by signing an N.J.S. 2C:52-19 Order retroactive to a date prior to the filing of a Motion for such Order.
These prosecutors and judges are the very entities that citizens like myself rely upon and look to to protect our rights. Instead, these prosecutors and judges have themselves victimized me, for simply trying to enforce an Expungement Order that I had paid hard-earned money to obtain, and to redress violations of same.
The violators were a Bedminster Police detective, the Bedminster Municipal Court prosecutor, the Bedminster Municipal Court judge, an Assistant Somerset County prosecutor, and an attorney who re-disseminated a document containing expunged information after being provided with same by the Bedminster Municipal Court prosecutor, after being advised of the existence of the Expungement Order, and after being provided with a redacted copy of the offending document.
The record reflects that I have been treated unfairly by the New Jersey court system. This situation has been aggravated by the prohibition of appeal by a citizen complainant by the Court Rules, and by prosecutors who refuse to advocate my position.
My Expungement Order was violated again on February 1, 2011 (by serial offender Richard J. Guss, Esq.). Nevertheless, Bergen County Municipal Court Prosecutor Andrew C. Samson, Roy F. McGeady, P.J.M.C. and various members of the Bergen County Sheriff's Department (Yesiltepe and others) have made it clear to me that they will harass, bully and disrespect me if I show up in Court again with a Complaint. At this point, I have no confidence whatsoever in New Jersey's Criminal Justice System. The fix has to stop now.
I need a responsible Court to handle my next complaint with the respect and diligence it deserves. I refuse to be victimized by Prosecutor Samson, Judge McGeady, or his court officers anymore.
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