In the Matter of the Expungement of the criminal/juvenile Records of R.G.C.

RECORD IMPOUNDED

                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A- 1378-23

IN THE MATTER OF THE                         APPROVED FOR PUBLICATION
EXPUNGEMENT OF THE                                    April 13, 2026
CRIMINAL/JUVENILE                                APPELLATE DIVISION
RECORDS OF R.G.C. 1
____________________________

              Argued January 8, 2026 ‒ Decided April 13, 2026

              Before Judges       Mawla,    Marczyk      and     Bishop-
              Thompson.

              On appeal from the Superior Court of New Jersey,
              Law Division, Bergen County, Docket No. XP-23-
              002199.

              Michele E. Friedman, Assistant Deputy Public
              Defender, argued the cause for appellant R.G.C.
              (Jennifer N. Sellitti, Public Defender, attorney;
              Michele E. Friedman, of counsel and on the briefs).

              Michael R. Philips, Assistant Prosecutor, argued the
              cause for respondent State of New Jersey (Mark
              Musella, Bergen County Prosecutor, attorney; Michael
              R. Philips, of counsel and on the brief).

        The opinion of the court was delivered by

BISHOP-THOMPSON, J.A.D.


1
    We use petitioner's initials pursuant to Rule 1:38-3(c)(7).
      In this appeal of first impression, we must determine the meaning of

"willful noncompliance" in the "clean slate" statute, N.J.S.A. 2C:52-5.3(c),

which permits an expungement of a New Jersey criminal record if ten years

have passed "from the date of the [petitioner's] most recent conviction,"

N.J.S.A. 2C:52-5.3(b), when restitution has not been fully made. The motion

court denied petitioner's second petition for expungement without prejudice

after determining her failure to pay restitution upon release from prison

constituted willful noncompliance. Petitioner contends her application should

have been granted because more than ten years have passed since her release

and her failure to satisfy the restitution obligation was not willful. Absent

competent and credible evidence of petitioner's inability to satisfy her

restitution obligation, we conclude her failure to pay was a deliberate act made

in conscious violation or disregard of the civil judgment, and affirm.

                                       I.

      In 2007, petitioner pleaded guilty to second-degree theft by unlawful

taking, N.J.S.A. 2C:20-3(a), and consented to pay restitution to her victims.

Prior to sentencing, an asset investigation revealed petitioner had no assets or

property to make the victims whole.         The judgment of conviction ordered

petitioner to pay $278,177.99 in restitution, pursuant to the terms of the

restitution order, which was entered as a civil judgment on June 29, 2007.



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      By 2023, more than $266,000 in restitution remained unpaid.

Petitioner's initial application for clean slate expungement was denied on April

6, 2023. On August 17, 2023, petitioner filed a second application for clean

slate expungement. Petitioner argued her failure to comply with the restitution

order was not willful, citing her deportation to Italy in 2017, her subsequent

relocation to Canada, and, as a non-citizen, she received only minimal public

assistance. She further argued significant medical issues—including "absence

seizures, fibrocystic breast disease . . . ovarian cysts, hypertension, type II

diabetes,   tympanosclerosis,   [e]dema,    [post-traumatic   stress   disorder],

[depressive] disorder[,] and general anxiety disorder"—impeded her ability to

support herself. Petitioner did not submit any documentation to substantiate

her reasons for noncompliance with the civil judgment.

      The State objected to the petition, seeking payment of petitioner's

outstanding restitution obligation. It contended petitioner paid restitution only

through mandatory inmate payments and garnished tax refunds collected

during her incarceration.   However, after her release from prison in 2010,

petitioner made no further payments.

      On December 12, 2023, the motion court denied the petition for

expungement without prejudice, finding petitioner had not met her burden to

prove eligibility pursuant to In re Kollman, 210 N.J. 557 (2012). Referencing



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N.J.S.A. 2C:52-5.3(b), the order stated, "[petitioner] failed to establish that her

non-payment was due to reasons other than willful non[]compliance." The

court reasoned:

                   In fact, this [c]ourt finds that this [petitioner]
            took those monies by means of deceptive business
            practices for which she previously pled guilty. This
            [c]ourt finds that the [petitioner] at one point had
            control over and access to all those monies. Thus, she
            has had every opportunity to repay that restitution in
            full many years ago. Her alleged disabilities or
            diminished ability to work presently are irrelevant.
            This [c]ourt finds that [petitioner]'s non-payment of
            restitution is willful non[]compliance.

The court further stated: "Based upon its findings, this [c]ourt will not grant

any new expungement applications by this [petitioner] for similar relief unless

all restitution is paid in full and until after the statutory waiting period of ten

years has lapsed."

                                       II.

      On appeal, petitioner argues the motion court abused its discretion by

finding she willfully "refused" to pay restitution. She asserts the pre -sentence

investigation revealed her inability to pay restitution as represented by the

State at sentencing, resulting in the entry of the civil judgment.         Lastly,

petitioner contends the court failed to properly consider her inability to work

and receipt of public assistance.




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                                       III.

      Generally, we review the denial of expungement for an abuse of

discretion. Kollman, 210 N.J. at 577. "Under that standard, a reviewing court

should not substitute its judgment if the trial court's ruling was within 'a range

of acceptable decisions.'" Ibid. (quoting Parish v. Parish, 412 N.J. Super. 39,

73 (App. Div. 2010)).

      Our review of statutory interpretation is "de novo, unconstrained by

deference to the decisions of the trial court." In re Expungement Application

of K.M.G., 477 N.J. Super. 167, 173 (App. Div. 2023) (quoting State v. Grate,

220 N.J. 317, 329 (2015)).       Also, the trial court's interpretation of the

expungement statute is reviewed de novo.          N.J. Div. of Child Prot. &

Permanency v. A.P., 258 N.J. 266, 278 (2024).

      N.J.S.A. 2C:52-1 to -32.1 governs expungement and these provisions

were intended by the Legislature "to establish a comprehensive statutory

scheme for the expungement of criminal records" and create "an equitable

system of expungement of indictable and nonindictable offenses as well as of

arrest records."   State v. Gomes, 253 N.J. 6, 21 (2023) (quoting State v.

T.P.M., 189 N.J. Super. 360, 364 (App. Div. 1983)) (internal quotation marks

omitted). In essence, our expungement laws are remedial in nature, intended

to provide "relief to the reformed offender" and minimize the collateral



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consequences of criminal convictions. Id. at 21-22; see also K.M.G., 477 N.J.

Super. at 176.

      In 2019, the Legislature amended the expungement laws and included

the clean slate provision under N.J.S.A. 2C:52-5.3. This legislative measure

was intended to expand access to expungement and is designed to be inclusive,

not exclusive, thereby offering relief to persons who might otherwise be

ineligible for expungement. See K.M.G., 477 N.J. Super. at 175-76.

      N.J.S.A. 2C:52-5.3(b) sets forth the parameters for clean slate

expungement, and provides the petitioner "may present the expungement

application after the expiration of a period of ten years from the date of the . . .

most recent conviction, payment of any court-ordered financial assessment,

satisfactory completion of probation or parole, or release from incarceration,

whichever is later."       This paragraph defines "court-ordered financial

assessment" as "any fine, fee, penalty, restitution, and other form of financial

assessment imposed by the court as part of the sentence for the conviction or

convictions that are the subject of the application."

      In this context, where a petitioner has not fully satisfied such financial

assessments, N.J.S.A. 2C:52-5.3(c) permits the granting of expungement

provided the ten-year requirement is met and the petitioner demonstrates, by a

preponderance of the evidence, their failure to pay was "due to reasons other



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than willful noncompliance." Simply put, the statute allows for expungement

of the conviction if the court finds there is no willful noncompliance and the

ten-year time requirement is otherwise satisfied.      However, at the time of

expungement, a petitioner's obligation to pay is entered as a civil judgment.

N.J.S.A. 2C:52-14 further requires a court to deny expungement if:           any

statutory prerequisite remains unsatisfied, including applications sought under

the clean slate provision; there is any other statutory ground for denial; or

public need outweighs the benefits of expungement. See In re Expungement

Petition of D.H., 204 N.J. 7, 18-20 (2010).

      A petitioner bears the initial burden of demonstrating eligibility by a

preponderance of the evidence. Id. at 18. Once this burden is met, it "shifts to

the State to 'demonstrate[] by a preponderance of the evidence that there is a

statutory bar or that the petition should not be granted.'" Ibid. (alteration in

original) (quoting In re Expungement Application of G.R., 395 N.J. Super.

428, 431 (App. Div. 2007)).

      It is undisputed petitioner has satisfied the ten-year time requirement to

be eligible for expungement under N.J.S.A. 2C:52-5.3(b).               However,

petitioner's substantial restitution obligation remains outstanding.

      Thus, we consider whether petitioner has met her burden of proving her

failure to pay restitution was not willful under N.J.S.A. 2C:52-5.3(c). While



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Kollman predates the clean slate expungement statute and is not directly

controlling as to the construction of N.J.S.A. 2C:52-5.3, it remains instructive

in several respects. 210 N.J. 557. Specifically, Kollman elucidates the general

burden-shifting framework in expungement proceedings, underscores the

necessity for petitioners to present competent and credible evidence, and

reinforces the principle expungement statutes are not intended to provide relief

in the absence of genuine rehabilitation and compliance with statutory

standards. Id. at 570-74.

      The clean slate expungement is a relatively new remedy, and the term

"willful noncompliance" is not defined in the statute.          Moreover, the

provisions do not define "willful," but our Supreme Court has interpreted the

term in other contexts; namely, contempt sanctions, where the Court defined

"willful" as conduct that is "deliberate, voluntary, or intentional, but not

necessarily malicious." State v. Moran, 202 N.J. 311, 323 (2010) (citations

and internal quotation marks omitted).

      Willful noncompliance entails a deliberate or intentional act in which the

individual can choose their course of conduct. In the context of family matters

and Rule 1:10-3 hearings, a key factor is whether the individual had the ability

to comply with the court order but chose not to. Pasqua v. Council, 186 N.J.

127, 140-41 (2006). In Milne v. Goldenberg, we affirmed the trial court's



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finding of willful noncompliance where a party "had 'a significant amount of

money . . . [at] her disposal, while she was not complying with [certain] court

orders'" and had "intentionally 'prioritize[d]' her funds and ignored the

obligation." 428 N.J. Super. 184, 199 (App. Div. 2012). We have held the

objective of a compliance hearing "is simply to determine whether that failure

was excusable or willful"; in other words, whether "the obligor was able to pay

and did not." Schochet v. Schochet, 435 N.J. Super. 542, 548 (App. Div.

2014).

      The record demonstrates petitioner's only payments toward restitution

were garnishments collected during her period of incarceration.        Petitioner

presented no competent evidence to demonstrate her inability to pay during the

seven years she remained in the United States following her release, nor during

her time residing in Italy and Canada.       Similarly, her claims of hardship,

medical issues, and reliance on public assistance are unsupported by any

competent and credible evidence in the record.

      The determination of whether a petitioner is unable to pay full restitution

is a fact-sensitive analysis, requiring the careful consideration of all competent

and credible evidence presented by the parties. Unsupported assertions of

hardship or indigency—without documentation or affidavits—are insufficient

to rebut a finding of willfulness. See R. 1:6-6; N.J.S.A. 2C:52-8; see also



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Kollman, 210 N.J. at 572-74. Absent such credible and competent evidence

demonstrating an inability to pay, petitioner's assertion the failure to satisfy

restitution was "nonwillful" fails. Accordingly, we hold petitioner's failure to

satisfy restitution following her release from prison was willful—a deliberate

act in conscious violation or disregard of the judgment. See Callahan v. Tri-

Borough Sand & Stone, 478 N.J. Super. 505, 514 (App. Div. 2024).

      We conclude the motion court properly exercised its discretion in ruling

petitioner failed to establish by a preponderance of the evidence her inability

to satisfy the judgment was not willful.       The court's finding of willful

noncompliance is supported by both the record and the governing law. See

Balducci v. Cige, 240 N.J. 574, 595 (2020); Gnall v. Gnall, 222 N.J. 414, 428

(2015).

      To the extent we have not addressed any of petitioner's remaining

arguments, we are satisfied they lack sufficient merit to warrant discussion. R.

2:11-3(e)(2).

      Affirmed.




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