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Vacated sentence permitted for certain prostitution and related offenses; expungement of records; procedural requirements; court’s authority

2C:44-1.1. Vacated sentence permitted for certain prostitution and related offenses; expungement of records; procedural requirements; court’s authority

a. (1) A person convicted of N.J.S.2C:34-1, prostitution and related offenses, or section 3 of P.L.1997, c. 93 (C.2C:34-1.1), loitering for the purpose of engaging in prostitution, or a similar local ordinance, 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 pursuant to section 1 of P.L.2005, c. 77 (C.2C:13-8) or as defined in paragraph (14) of 22 U.S.C. s.7102.

(2) Notwithstanding any law to the contrary, the person may also in the same application seek an order for the expungement of any reference to the person’s arrest, conviction, and any proceeding for prostitution in any records in the custody of a court, or law enforcement or correctional agency entitled to be served with the application pursuant to subsection b. of this section.

b. (1) An application made under this section, together with a copy of all supporting documents, shall be served pursuant to the Rules of Court upon: the Attorney General; the county prosecutor of the county wherein the court is located; the Superintendent of State Police; the chief of police or other executive head of the police department of the municipality wherein 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 person; the superintendent or warden of any institution in which the person was confined; and, if a disposition was made in municipal court, upon the judge of that court. Any of the noticed parties herein may make an appearance or file a submission responding to the person’s application.

(2) The 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, subject to reasonable concerns for the safety of the person, family members of the person, or other victims of human trafficking that may be jeopardized by the bringing of the application, or for other reasons consistent with the purposes of this paragraph.

c. (1) The court may vacate a conviction pursuant to this section if it finds by a preponderance of the evidence that the person was a victim of human trafficking pursuant to section 1 of P.L.2005, c. 77 (C.2C:13-8) or as defined in paragraph (14) of 22 U.S.C. s.7102 at the time of the offense, and that the violation was a result of the person having been a victim of human trafficking.

(2) In making a determination:

(a) evidence documenting the person’s status as a victim of human trafficking at the time of the offense from a federal, state, or local governmental agency shall create a rebuttable presumption that the person’s participation in the offense was a result of having been a victim, but shall not be required to vacate a conviction under this section; and

(b) the court may additionally consider other evidence it deems appropriate in determining whether the person was a victim of human trafficking, including, but not limited to:

(i) certified records of federal or State court proceedings which demonstrate that the defendant was a victim of a trafficker charged with a human trafficking offense under section 1 of P.L.2005, c. 77 (C.2C:13-8) or chapter 77 of Title 18 of the United States Code;

(ii) certified records of approval notices or law enforcement certifications generated from a federal immigration proceeding available to victims of human trafficking; and

(iii) 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 person has sought assistance in addressing the trauma associated with being a victim of human trafficking.

d. If the court finds, pursuant to subsection c. of this section, that the person was a victim of human trafficking, it shall enter an order vacating the conviction and directing that all court records be revised accordingly. When the person’s application also seeks an order for expungement, the court order shall require that any court, law enforcement and correctional agencies, and other noticed parties pursuant to subsection b. of this section expunge all references to the person’s arrest, conviction, and related proceedings for the violation of N.J.S.2C:34-1, prostitution and related offenses, or section 3 ofP.L.1997, c. 93 (C.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. An expungement ordered pursuant to this section shall have the same force as an expungement ordered pursuant toN.J.S.2C:52-1 et seq.