NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3453-06T53453-06T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.R.S.,

Petitioner-Appellant.

IN THE MATTER OF EXPUNGEMENT

PETITION OF J.R.S.

___________________________________________

Argued November 27, 2007 - Decided

Before Judges Coburn, Fuentes and Chambers.

On appeal from Superior Court of New Jersey,

Law Division, Somerset County, Expungement

No. 05-161.

Joel I. Rachmiel argued the cause for appellant.

Eric Mark, Assistant Prosecutor, argued the

cause for respondent (Wayne J. Forrest, Somerset

County Prosecutor, attorney; Jamin Cooper,

Assistant Prosecutor, on the brief).

The opinion of the court was delivered by

FUENTES, J.A.D.

Petitioner, J.R.S., appeals from the order of the Law Division vacating a previously entered judgment expunging the records of his arrest for the disorderly persons offense of resisting arrest. After the charges were dismissed, but before filing the expungement application, petitioner sent a tort claims notice to the State regarding the arrest. Once the expungement was granted, petitioner then commenced a civil suit against the State for claims arising out of the arrest. The State argues on appeal that petitioner's filing of a tort claims notice under N.J.S.A. 59:8-8 constituted the commencement of "civil litigation" against a public entity, triggering the statutory bar against the granting of an expungement petition contained in N.J.S.A. 2C:52-14(d). We disagree and reverse.

I

The salient facts here are brief and undisputed. On December 11, 2004, the New Jersey State Police arrested petitioner in Somerset County and charged him with (1) driving while intoxicated, N.J.S.A. 39:4-50; (2) refusing to take a breathalyzer examination, N.J.S.A. 39:4-50.2; and (3) resisting arrest, N.J.S.A. 2C:29-2. The Warren Township municipal court dismissed these charges on September 9, 2005.

On September 29, 2005, petitioner sent a notice of tort claims under N.J.S.A. 59:8-8 to the Superintendent of the New Jersey State Police. This notice, prepared by petitioner's counsel, read as follows:

[t]his letter is submitted as Notice of Tort Claim against the New Jersey State Police for the false arrest, malicious prosecution and use of excessive force against my client on [December 11, 2004] for an incident in which he was falsely accused of driving while intoxicated, refusal to take a breathalyzer examination and resisting arrest.

The notice also listed the four officers involved in the incident and explained that the court had dismissed all charges against the petitioner.

On October 21, 2005, petitioner filed a verified petition for expungement and a certification of verification to accompany a petition for expungement. Petitioner did not mention the tort claims notice in either the petition or the certification. On December 22, 2005, the Somerset County Prosecutor's Office formally notified the trial court that the State did not object to the petitioner's application for expungement. On January 13, 2006, the trial court entered the order for expungement. After receipt of the expungement order, the State Police wrote to petitioner, on March 29, 2006, and informed him that it had "examined [its] records and f[ou]nd no record of the arrest(s) and/or their disposition(s) in our files."

On February 14, 2006, petitioner filed a civil complaint against the state troopers who arrested him and the State Police Superintendent. In this compliant, petitioner alleged that the troopers stopped him without probable cause, used excessive force and physically assaulted him. The complaint was predicated upon the common law tort of false arrest, violations of his civil rights under 42 U.S.C.A.