HUDSON COUNTY — A man whose expunged drug conviction wound up on Hudson County campaign fliers is asking the state Supreme Court to let him sue for defamation. The case is tricky because while the conviction is true, the expungement erases it from the public record. The man, identified only as G.D., was convicted of drug possession in 1993...
Former Sen. Bernard Kenny (D-Hudson) looks up at the tally board during a vote in the Senate Chamber at the State House in this 2008 photo.HUDSON COUNTY — A man whose expunged drug conviction wound up on Hudson County campaign fliers is asking the state Supreme Court to let him sue for defamation.
The case is tricky because while the conviction is true, the expungement erases it from the public record.
The man, identified only as G.D., was convicted of drug possession in 1993 and had his record expunged in 2006.
G.D.’s attorney, Charles R. Cohen, said his client was not a candidate, nor did he work for a candidate at the time his criminal background was included on two fliers, one of which identified him by name and had his photo on it.
"I view the expungement statute as a shield, you view it as a sword, and I don’t agree with that" Justice Roberto Rivera-Soto said to Cohen.
"It was my client who was impaled," Cohen responded.
G.D., he added, was a private citizen "minding his own business," when the fliers appeared. "He has a right to be compensated for damages done to his reputation."
G.D. is asking the high court to allow him to sue former state Sen. Bernard Kenny and the Hudson County Democratic Organization on allegations of libel, invasion of privacy and negligent or intentional infliction of emotional distress. Kenny was CEO of the organization, which contends publicizing the conviction is protected speech because it’s true.
Hudson Democrats were split into two factions in 2007, with a state Senate seat at stake. G.D. was a former aide to then-candidate Brian Stack.
In a flier titled "It’s the company you keep," Stack’s opponents painted G.D. as a member of a "sleazy crowd" surrounding Stack, who won the election, and also identified G.D. as a drug dealer who went to jail for five years.
Although G.D.’s record was expunged in 2006, a state Department of Corrections website still listed him as late as 2008. Cohen said that doesn’t mean he was on it in 2007. In addition, G.D. served about eight months of his five-year sentence before he was released.
An appeals court said the fliers were "substantially accurate" and that G.D.’s sentence was for five years, regardless of how long he actually served.
"Even if expunged, the fact of (G.D.’s) conviction is the truth," the appeals court said, noting his offense was a public record for about 16 years after he was arrested.