Proposed R. 3:21-11 -
Motion to Vacate Certain Convictions - N.J.S.A. 2C:44-
1.1 – Motion to Vacate
Prostitution-Related Conviction if the Conviction was
a Result of Having Been
a Victim of Human Trafficking
N.J.S.A. 2C:44-1.1a(1) provides that a
person who has been convicted of N.J.S.A.
2C:34-1, prostitution or a
prostitution-related offense; or N.J.S.A. 2C:34-1.1, loitering for
the purpose of engaging in prostitution;
or a similar ordinance; may file an application
with the Superior Court to have the
prostitution-related conviction vacated at any time
following entry of a judgment of
conviction when the person's participation in the offense
was a result of having been a victim of
human trafficking. The statute specifically states
that the application may be filed “in
accordance with the Rules of Court.” The Criminal
Practice Committee is recommending
adoption of proposed new R. 3:21-11 in
accordance with the statute.
The AOC provided the following statistics
relating to indictable and nonindictable
prostitution-related convictions that fall
under N.J.S.A. 2C:34-1; or loitering
for the purpose of engaging in
prostitution that fall under N.J.S.A. 2C:34-1.1. For
indictable convictions, since 1980, 1475
defendants have been convicted in violation of
N.J.S.A. 2C:34-1 or N.J.S.A. 2C:34-1.1,
with the following breakdown:
Years # of Defendants
Convicted of Indictable Charges
1980-1989 74
1990-1999 222
2000-2009 735
2010-2014 404
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For non-indictable convictions from 1996
through April 2014, there were 10,530
convictions of non-indictable
prostitution-related offenses. Of those convictions, 418
occurred in the 2013 court year. The chart
below does not include convictions pursuant
to local ordinances.
Offense
# of Non-Indictable
Convictions for Court
Year 2013
Cumulative # of Non-
Indictable
Convictions from 1996 -
April
2014
N.J.S.A. 2C:34-1, et seq. 256 6675
N.J.S.A. 2C:34-1.1, et seq. 162 3855
Paragraph (a) of the proposed rule was
derived from paragraphs a(1) and a(2) of
N.J.S.A. 2C:44-1.1. Paragraph (a) explains
that a person who has been convicted of a
prostitution related offense, when the
person's participation in the offense was a result of
having been a victim of human trafficking,
can file a motion in the Superior Court in the
county where the conviction occurred to
vacate the conviction and contemporaneously
expunge any reference to the person's arrest,
conviction, and any proceeding for
prostitution. To streamline the process,
the proposal combines the motion to vacate the
conviction and the expungement of records
together as one motion. Additionally, the
proposed rule states that the motion
should be filed in the Superior Court in the county
where the conviction occurred, as the rule
covers motions to vacate convictions that were
disposed of in both municipal and criminal
courts.
The Committee considered whether the rule
should address the county where a
motion should be filed when the applicant
seeks to vacate multiple convictions that were
disposed of in different counties.
Specifically, the Committee discussed whether multiple
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convictions from different counties can be
consolidated in one motion or if the applicant
should file a separate motion in each
county where the convictions arose. Currently,
applications to expunge convictions from
different counties can be consolidated,
however, petitions for post-conviction
relief and motions to vacate a guilty plea for
convictions disposed of in different
counties are not consolidated. The Committee
determined that a motion should be filed
in the county where the conviction arose and
after the filing, the parties can consent
to consolidation, if appropriate.
Paragraph (b) of the proposed rule
addresses the time to file the motion and is
derived from N.J.S.A. 2C:44-1.1b(2). The
Committee discussed that language in
paragraph a of the statute and paragraph
b(2) of the statute are inconsistent. Paragraph a
of N.J.S.A. 2C:44-1.1 provides that a
person convicted of certain prostitution and related
offenses “may file an application with the
Superior Court in accordance with the Rules of
Court to have the conviction vacated at
any time following entry of a judgment of
conviction, when the person's
participation in the offense was a result of having been a
victim of human trafficking.” N.J.S.A.
2C:44-1.1a (emphasis added). On the other hand,
paragraph b(2) of the statute states:
“[t]he application shall be made and heard within a
reasonable time after the person has
ceased to be a victim of human trafficking or has
sought services for being a victim of
human trafficking, whichever occurs later,…”
N.J.S.A. 2C:44-1.1b(2) (emphasis added).
The Committee recognized the
inconsistencies in the statutory language
and determined that the language in paragraph
(b) of the proposed rule should be aligned
with the more specific language that is set forth
N.J.S.A. 2C:44-1.1b(2).
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Paragraph (c) of the proposed rule is
primarily derived from N.J.S.A. 2C:44-
1.1b(1) and sets forth the entities that
must receive notice of the motion. The statute
states that an application, together with
a copy of all supporting documents, shall be
served upon relevant law enforcement
entities and courts pursuant to the court rules. To
address the proper method of service, the
Committee discussed that currently service for
expungements requires notice by certified
mail. The Committee considered whether the
rule proposal should require service as
set forth in R. 4:4-4 (which is the rule governing
service for complaints, i.e., in person or
by substitute service), or whether the rule should
state that notice should be by certified
mail or registered mail, return receipt requested.
The Committee is proposing that notice
should be provided by certified mail or registered
mail, return receipt requested. Under the
proposal, a noticed party may make an
appearance or file a submission responding
to the motion.
Paragraph (d) of the proposed rule sets
forth guidelines for the contents of the
motion, certification by the moving party
and procedures for a hearing. Derived mostly
from N.J.S.A. 2C:44-1.1c(2) (which lists
the information that the court can consider in
determining the motion); normal motion
practice; and R. 3:22-8; subsection (d)(1) of the
proposed rule addresses materials that may
be included in the motion papers. Subsection
(d)(1) of the rule proposal also states
that the applicant should include the prosecutor’s
consent to the motion to vacate and to expunge
records, if such consent is obtained.
While parameters for certification of
documents submitted to the court and
requirements regarding a hearing are not
set forth in the governing statute, the Committee
is recommending procedures to address
these topics. The language in subsection (d)(2)
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of the proposed rule requires that the
motion include an affidavit or certification. It also
explains that the motion can be disposed
of on the papers without a hearing, unless the
court concludes that a hearing is required
in the interest of justice.
The language in paragraph (e) of the
proposed rule is derived from N.J.S.A.
2C:44-1.1d and provides that the court may
grant the motion and vacate a conviction
upon a finding by a preponderance of the
evidence that the applicant was a victim of
human trafficking at the time of the
prostitution-related offense, and that the violation
was a result of the applicant having been
a victim of human trafficking. Consistent with
the language in paragraph (a) of the
proposed rule upon granting the motion, the court
shall enter an order vacating the
conviction; directing that all court records be revised
accordingly; and requiring that any court,
law enforcement entity, correctional agency,
and other party noticed pursuant to the
rule, expunge all references to the applicant's
arrest, conviction, and proceedings that
relate to the vacated conviction.
Paragraph (f) of the proposed rule
references the expungement statute to explain
that a motion filed pursuant to this rule
to vacate and expunge a prostitution-related
conviction is separate and apart from an
expungement application filed pursuant to
N.J.S.A. 2C:52-1 to - 32.
The Committee recommends that if proposed
new R. 3:21-11 is adopted by the
Court, a conforming amendment should be
made to R. 3:16, which addresses the
presence of the defendant at court events.
The Committee is recommending that R. 3:16
should be revised so that the
defendant/applicant is not required to be present in order for
the court to decide a motion to vacate a
conviction pursuant to proposed R. 3:21-11. The
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Committee also reviewed R. 1:3-4 of the
rules of general application, which discusses
enlargement of time, and R. 3:22-3 of the
rules governing post-conviction of relief, which
discusses exclusiveness of remedy and
concluded that no rule changes were necessary to
those rules.
The Committee discussed whether a filing
fee should be assessed for this type of
motion. Filing fees are typically not
assessed for motions filed in connection with a
criminal case. For instance, currently a
fee is not assessed to a defendant filing a petition
for post-conviction relief or filing a
motion to vacate a guilty plea. There is a filing fee
assessed for an expungement application,
as expungements are not considered to be
criminal matters. See R. 3:30 (referencing
N.J.S.A. 2C:52-29 and N.J.S.A. 22A:2-25).
The Committee concluded that there should
not be a filing fee for motions to vacate and
expunge prostitution-related offenses that
are filed pursuant to the proposed R. 3:21-11,
as they are primarily criminal motions, as
opposed to civil matters.
The proposed language for new R. 3:21-11
follows.
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Rule 3:21-11. Motion to Vacate Certain
Convictions.
(a) Motion for Relief. At any time
following entry of a judgment of
conviction, a person convicted of N.J.S.A.
2C:34-1, prostitution and related offenses; or
N.J.S.A. 2C:34-1.1, loitering for the
purpose of engaging in prostitution; or a similar
local ordinance may file a motion with the
Superior Court in the county where the
conviction occurred, to vacate the
conviction and contemporaneously expunge any
reference to the person's arrest,
conviction, and any proceeding for prostitution, when the
person's participation in the offense was
a result of having been a victim of human
trafficking pursuant to N.J.S.A. 2C:13-8
or as defined in 22 U.S.C. 7102(14).
(b) Time. A motion shall be made and heard
within a reasonable time after the
applicant has ceased to be a victim of
human trafficking or has sought services for being
a victim of human trafficking, whichever
occurs later, subject to reasonable concerns for
the safety of the applicant, family
members of the applicant, or other victims of human
trafficking that may be jeopardized by the
bringing of the motion, or for other reasons
consistent with this rule.
(c) Notice. The notice of motion, together
with a copy of all supporting
documents, shall be served by certified or
registered mail, return receipt requested, upon
the Attorney General; the county
prosecutor of the county where the court is located; the
Superintendent of State Police; the chief
of police or other executive head of the police
department of the municipality where the
offense was committed; the chief law
enforcement officer of any other law
enforcement agency of this State that participated in
the arrest of the applicant; the
superintendent or warden of any institution in which the
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applicant was confined; and, if a
disposition was made in municipal court, upon the judge
of that court. A noticed party may make an
appearance or file a submission responding
to the motion.
(d) Contents of Motion; Certification;
Procedure.
(1) Contents of Motion. The motion shall
set forth the following
information: a notice of motion; the
movant’s certification setting forth the claim, along
with a description of all of the evidence
included; the movant’s certification of
victimization; packet of evidence
documenting the applicant’s status as a victim of
human trafficking at the time of the
offense; the date, docket number, and content of the
complaint, indictment or accusation upon
which the conviction was based and the county
where filed; the date and content of the
sentence or judgment complained of and the
name of the presiding judge; if obtained
consent from the prosecutor where the offense
occurred to vacate the conviction and
expunge any reference to the applicant’s arrest,
conviction, and any proceeding for
prostitution; form of order to vacate the conviction
and expunge records; and proof of service
upon the parties. Evidence documenting the
applicant’s status as a victim of human
trafficking at the time of the offense may include,
but not be limited to:
(A) certified records of federal or State
court proceedings which
demonstrate that the applicant was a
victim of a trafficker charged with a human
trafficking offense under N.J.S.A. 2C:13-8
or chapter 77 of Title 18 of the United
States Code;
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(B) certified records of approval notices
or law enforcement
certifications generated from a federal
immigration proceeding available to
victims of human trafficking;
(C) testimony or a sworn statement from a
trained professional staff
member of a victim services organization,
an attorney, a member of the clergy or a
health care or other professional from
whom the applicant has sought assistance in
addressing the trauma associated with
being a victim of human trafficking; or
(D) any other evidence that the court
deems appropriate.
(2) Certification; Hearing. Any factual
assertion that provides the
predicate for a claim of relief must be made
by an affidavit or certification
pursuant to Rule 1:4-4 and based upon
personal knowledge of the declarant. A
hearing need not be conducted on the
motion, unless the court, after review of the
material submitted, concludes that a
hearing is required in the interest of justice.
(e) Order. The court may vacate a
conviction pursuant to this rule upon a
finding by a preponderance of the evidence
that the applicant was a victim of human
trafficking pursuant to N.J.S.A. 2C:13-8
or as defined in 22 U.S.C. 7102(14) at the time
of the offense, and that the violation was
a result of the applicant having been a victim of
human trafficking. If the court finds that
the applicant was a victim of human trafficking
it shall enter an order vacating the
conviction and directing that all court records be
revised accordingly, and requiring that
any court, law enforcement, correctional agencies,
and other parties noticed pursuant to this
rule expunge all references to the applicant's
arrest, conviction, and related
proceedings for the violation of N.J.S.A. 2C:34-1,
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prostitution and related offenses; or
N.J.S.A. 2C:34-1.1, loitering for the purpose of
engaging in prostitution; or a similar
local ordinance from all records in their custody that
relate to the vacated conviction.
(f) Nothing herein shall prohibit a person
from seeking an expungement
pursuant to N.J.S.A. 2C:52-1 to -32.
Adopted to be effective .
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II. Non Rule
Recommendations
The Committee is not proposing any non
rule recommendations at this time.
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III. Matters Previously
Sent to the Supreme Court
A. Amendments to Rules
2:7-2; 2:7-4; 3:23-8; and the Appendix to Part
VII, Appendix 2 –
Guidelines for Determination of a Consequence of
Magnitude
As a carry-over item from the Committee’s
2009-2011 term, effective September
1, 2014, the Court adopted amendments to
Rules 2:7-2; 2:7-4; 3:23-8; and the Appendix
to Part VII, Appendix 2 – Guidelines for
Determination of a Consequence of Magnitude.
In a municipal court matter, an indigent
defendant is entitled to be represented by
assigned counsel, normally a Municipal
Public Defender, if the indigent defendant is
facing a sentence that would constitute a
consequence of magnitude (as described in the
Appendix to Part VII, Appendix 2 –
Guidelines for Determination of a Consequence of
Magnitude and R. 7:3-2). Occasionally,
although counsel is assigned to represent the
indigent defendant in the municipal court,
the actual sentence that is imposed for the
municipal court conviction does not amount
to a consequence of magnitude. Strict
application of the court rules in this
situation appeared to require that, irrespective of the
actual sentence that is imposed, once an
indigent defendant is assigned counsel in the
municipal court, that indigent defendant
is entitled to assigned counsel throughout the
appeal process.
Effective September 1, 2014, Rules 2:7-2;
2:7-4; 3:23-8 were amended to provide
that an indigent person convicted of a
non-indictable offense shall be assigned counsel
for purposes of appeal: (1) if the
sentence imposed constitutes a consequence of
magnitude, or (2) if the person is
constitutionally or otherwise entitled by law to counsel.
The rules further provide that “[i]f the
sentence imposed does not constitute a
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consequence of magnitude, the court
hearing the appeal may, in its discretion, determine
whether to assign counsel for purposes of
the appeal, irrespective of whether counsel was
previously assigned in the case.” Pursuant
to those amendments when an indigent person
is involved in an appeal from a conviction
in municipal court and the sentence imposed
does not constitute a consequence of
magnitude, the indigent person is not automatically
entitled to assigned counsel for purposes
of the appeal. However, the court handling the
appeal has discretion to assign counsel as
it deems appropriate. The rule amendments do
not alter the current practice wherein the
attorney assigned to represent the indigent
person in the municipal appeal is normally
selected from the Madden pro bono attorney
list maintained in the respective
vicinage. See Madden v. Delran, 126 N.J. 591 (1992).
Also, effective September 1, 2014, the
Appendix to Part VII, Appendix 2 –
Consequence of Magnitude Guidelines was
revised to increase the monetary sanction
from $750 to $800, exclusive of court
costs, to reflect the Drug Abuse Education Fund
(DAEF) Penalty, (N.J.S.A. 2C:43-3.5).
Aligned with current practice, the $800 monetary
sanction amount is consistent with the
minimum monetary sanction that can be imposed
for defendants receiving a conditional
discharge.
