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Rogers v. Cape May County Officer of the Public Defender

September 15, 2010

JOHN ROGERS, PLAINTIFF-APPELLANT,
v.
CAPE MAY COUNTY OFFICE OF THE PUBLIC DEFENDER AND ERICA SMITH, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-480-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 10, 2010

Before Judges Lihotz and Baxter.

Plaintiff John Rogers appeals from a Law Division order denying his motion to file a late notice of tort claim against defendant, the Office of the Public Defender. Rogers argues that because his cause of action for professional negligence against the public defender who represented him in a criminal case accrued from the date of an exonerating event, McKnight v. Office of the Public Defender, 197 N.J. 180, 182 (2008), then no prejudice inured to defendant by allowing the related tort claim notice to be filed more than ninety days from that date, even though more than a year had passed since his initial conviction was reversed. We disagree and affirm.

These are the undisputed facts regarding the underlying criminal matter. In August 1998, Rogers was indicted on nine charges relating to the distribution of narcotics. He was represented by an attorney employed by defendant. In an effort to show the arresting police officers could not accurately identify Rogers as the perpetrator of the criminal offenses, counsel developed a plan for Rogers to switch clothing with his brother, then sit in the audience while his brother sat at counsel table during the arresting officers' testimony. The plan was discovered before it could be fully executed. Additionally, counsel failed to call two exculpatory witnesses who were prepared to testify that Rogers's brother was selling drugs on the day in question. The jury convicted Rogers, who was sentenced to fourteen years incarceration with a six-year parole ineligibility period.

Rogers's conviction and sentence were affirmed on appeal. The Court denied certification. State v. Rogers, 170 N.J. 209 (2001). Rogers filed a petition for post-conviction relief (PCR) alleging counsel's errors resulted in ineffective assistance. The trial judge denied the petition. On appeal, in an unpublished opinion, we reversed that order and overturned Rogers's conviction, determining trial counsel's "impostor plan" was "ill-conceived and unethical." State v. Rogers, No. A-3230-05 (App. Div. October 23, 2007) (slip op. at 10, 11). Accordingly, counsel's ineffective representation impeded Rogers's right to a fair trial. Id. at 11. Thereafter, the indictment was dismissed with prejudice on July 25, 2008.

Two months later, Rogers retained civil counsel, who requested the file from PCR counsel. Civil counsel did not immediately file the notice required by the Tort Claims Act, N.J.S.A. 59:1-1 to -:12-3 (TCA), suggesting he needed to thoroughly review the matter to "be completely sure of what transpired[.]" The tort claims notice was filed on November 3, 2008. On July 14, 2009, plaintiff filed a motion for leave to file notice out of time. The trial court denied the motion and this appeal ensued.

"No action shall be brought against a public entity or public employee under [the Act] unless the claim upon which it is based shall have been presented in accordance with [the Act's] procedure[s.]" N.J.S.A. 59:8-3. N.J.S.A. 59:8-8 provides, in pertinent part, that A claim relating to a cause of action for . . . damage to person or to property shall be presented . . . not later than the ninetieth day after accrual of the cause of action. After the expiration of six months from the date notice of claim is received, the claimant may file suit in an appropriate court of law. The claimant shall be forever barred from recovering against a public entity or public employee if:

a. He failed to file his claim with the public entity within 90 days of accrual of his claim except as otherwise provided in section [N.J.S.A.] 59:8-9[.]

Notice is not a procedural nicety or technicality. The Supreme Court has instructed that the notice requirement serves

(1) to allow the public entity at least six months for administrative review with the opportunity to settle meritorious claims prior to the bringing of suit; (2) to provide the public entity with prompt notification of a claim in order to adequately investigate the facts and prepare a defense . . .; (3) to afford the public entity a chance to correct the conditions or practices which gave rise to the claim; and (4) to inform the State in advance as to the indebtedness or liability that it may be expected to meet. [Beauchamp v. Amedio, 164 N.J. 111, 121-22 (2000) (internal quotations omitted).]

Filing of a late notice may be granted on motion and supporting affidavit showing "sufficient reasons constituting extraordinary circumstances." N.J.S.A. 59:8-9. In such an instance, a trial court has the discretion to permit a late notice of claim to be filed within one year of accrual, provided the public entity has not been "substantially prejudiced." Ibid.

Rogers challenges the motion judge's conclusions in denying his motion. The motion judge determined that, for the purpose of fixing the commencement of the ninety-day notice period, Rogers was "exonerated" when this court overturned his conviction on October 23, 2007. Thus, his filing, submitted "ten months after the ninety day deadline, and over a year after his claim accrued[,]" was out of time. Moreover, the judge concluded Rogers's motion to file a notice of late claim ...


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