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This article by Kathleen McGinn Spring was prepared for the August 7, 2002 edition of U.S. 1 Newspaper. All rights reserved.

How to Clear A Criminal Record

A lot of people live in fear," says attorney George

Yuska. "They’re afraid to take a promotion, afraid to enter a

profession." The reason? A brush with the law — maybe decades

ago — that would turn up in the background checks that more and

more employers are making in the post-911 world.

An arrest, even one that did not result in a conviction, can haunt

anyone seeking certification in a profession, applying for a job,

or trying to get into graduate school. The self-employed also can

be affected, Yuska points out. Evidence of a criminal offense —

or arrest — can mean an small business owner could fail to win

a government contract.

Even before 911, Yuska got calls from parents worried about the effects

their children’s legal offenses could have on their futures, and from

employees and professionals worried about how their careers could

be affected. Now the pace of calls has picked up. "I get as many

as five a month," says Yuska.

Common offenses callers cite include possession of a small amount

of marijuana, shoplifting, theft, and soliciting a prostitute. Often,

the arrest occurred many years ago.

In many cases, it is possible to make the record of a criminal contact

go away through a legal process called expungement. Yuska speaks on

"Expungement: How to Erase a Youthful Indiscretion from Your Permanent

Record," on Friday, August 16, at 9 a.m. at a free seminar at

Mercer County Community College. Call 914-251-1500, ext. 112.

Yuska works on civil as well as criminal matters for Stark & Stark,

where he has been practicing for five years. He is a graduate of St.

John Fisher College (Class of 1984) and earned his J.D. at the University

of Dayton in 1988. Prior to joining the law firm, he spent seven years

as a prosecutor in New York City and two-and-a-half years in the organized

crime division of the New Jersey Attorney General’s office.

He is married to Lillian Nazzaro, a personal injury defense attorney

associated with the firm of Patricia McGlone in West Trenton. Nazzaro

grew up in Princeton and attended Princeton High School. The couple

met in law school and moved from New York City to New Jersey looking

for a better quality of life for their children. They have two sons,

Dylan, 8, and Andrew, 6, and they live in Pennington.

Yuska says that after an expungement, the record of a criminal contact

is sealed, allowing employees — also job seekers — to legally

answer "no" when asked if they have ever been arrested or

convicted of a crime. Not every offense can be expunged, however,

and there are certain circumstances in which even an expunged offense

can see the light of day again.

"It gets complicated," Yuska says more than once in explaining

how expungement works. Some offenses can not be expunged. They include

convictions for murder, robbery, and sexual assault. In addition,

motor vehicle offenses — including convictions for drunk driving

— are not criminal matters, and therefore can not be expunged.

Possessing a quantity of an illegal drug for personal use can be expunged

in most cases. Possessing a drug with the intent to sell can not be

expunged.

Doctors and podiatrists are treated a little differently. While they

get the same treatment as everyone else with regard to the expungement

of most offenses, any drug convictions or dispositions can be reported

to their medical boards.

Attorneys are eligible to have their criminal contacts expunged, but

if they throw their hats into the ring for an appointment to the bench,

the records can be unsealed. Individuals seeking work in law enforcement

— whether on the local police force or in federal agency such

as the F.B.I. or C.I.A. — also lose the protection of any expungement,

as do candidates for jobs as corrections officers.

It is possible to expunge several offenses at one time — perhaps

one felony and two or three lesser offenses. Anyone whose offenses

have climbed into the double digits is not going to have much luck

with expungement. This, explains Yuska, is how the process of expungement

works:

Calculating the damage. "When we meet with a client,

we advise him or her on how to get a background check," he says.

"We need to know what is out there."

Looking at time requirements. If an individual has been

arrested and his case has been dismissed, he can apply right away

to have the record of the arrest expunged. Where there is an administrative

dismissal after a supervised treatment program — perhaps a drug

offense — the individual can apply for expungement six months

after the treatment program ends.

After a conviction as a disorderly person, the term New Jersey uses

for misdemeanors of all kinds, the waiting period is five years. For

a felony it is 10 years. Sometimes, individuals arrested on a criminal

charge are allowed, through plea bargaining, to plead to the violation

of a municipal ordinance. In that case, they must wait for two years

before filing a petition for expungement.

Filing the petition. Upon determining that his client’s

offenses are eligible to receive consideration for expungement, an

attorney files a petition with the court, and a hearing is scheduled

in 35 to 60 days. This petition must be served on a number of law

enforcement agencies, all of which have the opportunity to object.

Getting an approval. "Objections to an expungement

petition are not subjective," says Yuska. "There are objective

criteria." Included are the nature of the offense, the number

of convictions, and the statutory time periods one must wait before

filing the petition.

Sealing the record. If there are no objections, the judge

signs an order for expungement, and it is served on all law enforcement

agencies that were involved in the arrest, conviction, or disposition.

The attorney then follows up to make sure that, in fact, the record

of the offense has been sealed.

Yuska notes that every state has different rules governing expungement.

As a New Jersey attorney, he can not work at sealing arrest or conviction

records for a client who now lives and works in New Jersey, but who

has a criminal record in Nebraska, California, and North Carolina,

for example.

For clients whose offenses can be sealed in New Jersey, the process

brings a second chance at a clean record. Says Yuska: "Expungement

provides an individual who has made a mistake an opportunity to shed

the negative stigma of a conviction or legal contact that may detrimentally

affect his livelihood and career potential."


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