Filing the Forms
- Take or mail the original petition to the Clerk of Court where the original conviction was filed.
- Keep one copy for yourself.
- Serve the prosecutor by giving her/him a copy.
Your case may have been filed by a City Prosecutor OR a County Attorney. The prosecutor will be stated on your original complaint, or on the criminal history or court case search. You can “serve” the prosecutor by sending him/her a copy of the petition in the mail or by dropping a copy off at his/her office. If the prosecutor has an office in the courthouse, you may want to drop off the copy for the prosecutor at that office on the same day you file your petition.
You have now “served” and filed your petition.
The clerk’s office will schedule your petition for hearing. When it is scheduled, the clerk will mail you a copy of a notice stating the hearing date and time.
Court Hearing on Petition to Set Aside a Conviction
YOU MUST ATTEND THE HEARING IN ORDER TO GET YOUR CONVICTION SET ASIDE.
- Appear at the hearing early. BE ON TIME.
- It is likely that your case will be set on a court “call” calendar at the same time and in the same courtroom as many other cases. There may not be a particular order in which cases are called. You may spend an entire morning or afternoon in court waiting for your case to be called. Be prepared to wait.
- When the judge calls your name, approach the bench. The “bench” is where the judge sits. The prosecutor probably also will be at the bench. You usually can tell who a prosecutor is because that attorney will be at the bench for every case called by the judge.
- When you approach the bench, be respectful. Do not argue with the judge.
- At the end of your presentation, the judge may or may not have questions for you.
- This is not a hearing to prove your innocence at the original trial. It is just a hearing to set aside a conviction. You are not asking for a re-trial. This is not your chance to argue about the original conviction or charges. This is your chance to ask the court to “set aside” a conviction because it is interfering with your ability to work, get housing, or go to school.
- The judge will ask the prosecutor for his/her opinion.
- The prosecutor may not have any objection. If the prosecutor does not want the court to set aside your conviction, he or she will object and will tell the judge why. DO NOT INTERRUPT THE PROSECUTOR WHILE HE OR SHE IS TALKING.
- If the prosecutor does have an objection, the judge probably will give you a chance to respond to the prosecutor.
- If the judge does not give you that chance, wait until the prosecutor is finished speaking and politely ask the judge if you can respond to what the prosecutor said.
- If the judge says “no,” the judge means “no.”
The prosecutor and judge have access to your criminal record. This record will contain all the criminal charges and convictions you have ever had. For example, traffic tickets, driving without insurance, disturbing the peace. If all these events happened before the conviction you are asking the court to set aside, the court may not be concerned about those events.
The criminal record will influence the judge. If you have had other charges and convictions since the conviction for the offense you want set aside, the court will be concerned and will take those events in to account.
At the end of a hearing, the judge will enter an order. In most counties a copy of the order will be provided to you after the hearing – often by mail. Check with your Clerk of Court to see how you will receive your copy of the order. Some courts may require you to provide an order for the judge’s signature: Court Order to Set Aside a Criminal Conviction (CC 6:11(2)).
It will take a few days after the hearing for computers to be updated and the note “set aside” to appear in the JUSTICE record and your criminal history.
An order will contain the language that the conviction is “nullified,” meaning it was cancelled out. You can show this order to potential employers to prove that your conviction was nullified.