Expunged Conviction Bars Forfeiture of Public Office – In re Nunez

Normally, conviction of a crime of the third degree requires forfeiture of public office by a public employee. However, in today’s Appellate Division decision, In re Forfeiture of Public Office of Nunez, no party moved before the court for forfeiture at the time of the defendant’s sentencing. Moreover, it appeared that the sentencing judge was not aware that the defendant was a public employee. The criminal conduct in the defendant’s case did not “touch upon his office.”

In time, the defendant completed his sentence, waited the required 10 years and then filed a motion to expunge his conviction. His application was granted and the conviction was expunged.

Subsequently, the defendant had a dispute with his public employer which resulted in the employer seeking forfeiture some 14 years after the conviction.

The Appellate Division ruled that since an expunged conviction is deemed not to have occurred, there were no grounds to consider a forfeiture based upon the expunged conviction.

Please note that this outcome could not occur in a circumstance where the criminal misconduct touched upon the public employee’s office. Such a criminal conviction is not subject to expungement. See NJSA 2C:52-2(b).

Download a copy of In re Forfeiture of Public Office of Nunez.

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