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Rogers v. Cape May County Officer of the Public Defender


September 15, 2010


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

Per curiam.


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 On appeal, in an unpublished opinion, we reversed that order and overturned Rogers's conviction, determining trial counsel's "impostor plan" was "ill-conceived and unethical."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 should have been submitted by October 23, 2008, but was not filed for almost nine months following that one-year grace period.

Arguing the Court's determination in McKnight, supra, 197 N.J. at 182, was "a change in law" satisfying the extraordinary circumstances requirement for a late filing, Rogers maintains he was not exonerated for the purpose of triggering accrual of his legal malpractice claim until the indictment was dismissed, making his notice a mere eight days late and his motion within the one-year limitations period of N.J.S.A. 59:8-9. Defendant counters asserting the October 23, 2007 reversal of plaintiff's conviction constituted a "disposition more beneficial to [plaintiff] than the original judgment[,]" referenced in McKnight, supra, 197 N.J. at 182, as the trigger for the one-year limitations period. As the motion was untimely, the claim is barred. Succinctly, the question for review is whether Rogers's exoneration occurred when Rogers successfully achieved PCR on October 23, 2007, or when he could no longer be retried, following dismissal of the indictment, on July 23, 2008.

In McKnight, the PCR judge concluded the defendant established a deprivation of the effective assistance of counsel, when his attorney provided misleading advice on the effect of a guilty plea resulting in conviction on his immigration status. McKnight v. Office of the Pub. Defender, 397 N.J. Super. 265, 267-70 (App. Div. 2007). The PCR judge set aside the defendant's guilty plea, as his conviction resulted in an attempted deportation, which failed when the defendant's native country refused to accept him as a deportee, leading to his indefinite incarceration. Id. at 269-70. The defendant filed a notice of tort claim more than four years following his guilty plea, but within ninety days of the order granting PCR relief. Ibid.

Reversing our affirmance of the dismissal of the malpractice action as untimely, the Court, adopting the reasoning of the Appellate Division's dissenting opinion, held that the legal malpractice claim accrued upon a criminal defendant's exoneration, which "'might be vacation of a guilty plea and dismissal of the charges, entry of judgment on a lesser offense after spending substantial time in custody following conviction for a greater offense or any disposition more beneficial to the criminal defendant than the original judgment.'" McKnight, supra, 197 N.J. at 182 (quoting McKnight, supra, 397 N.J. Super. at 298). A determination of actual innocence was not required; rather, only a demonstration that the defendant [w]as "'able to show some injury caused by the alleged malpractice whether that relief is dismissal of the charges, acquittal on retrial, conviction of a lesser included offense or otherwise[.]'" Ibid. (quoting McKnight, supra, 397 N.J. Super. at 300-01).

Using this standard, we agree with the motion judge that, for the purpose of establishing a professional negligence claim, Rogers was exonerated upon our determination that criminal trial counsel's conduct was "ill conceived and unethical," resulting in reversal of his conviction. At that point, Rogers was certain counsel's conduct was negligent and that it had caused him injury. Accordingly, he was required to file a notice pursuant to N.J.S.A. 59:8-9 within ninety days.

Here, Rogers not only failed to file his claim within ninety days of reversal of his conviction, but also within ninety days of dismissal of the indictment. Rogers offers no explanation of extraordinary circumstances but to say McKnight changed the law. However, that proffer is extended only in hindsight; Rogers filed his tort claims notice on November 3, 2008, prior to the publication of McKnight on November 26, 2008.

Rogers's ignorance of the ninety-day requirement does not excuse the late filing. See S.P. v. Collier High School, 319 N.J. Super. 452, 465-66 (App. Div. 1999), (holding that ignorance of filing requirements and youth are insufficient to excuse untimely notice), overruled on other grounds, Fruglis v. Bracigliano, 170 N.J. 250 (2003). So too, civil counsel's inattention or administrative inefficiencies will not suffice as extraordinary circumstances to excuse late filing. See Zois v. N. J. Sports & Expo. Auth., 286 N.J. Super. 670, 674 (App. Div. 1996) (denying late filing resulting when attorney's secretary misplaced the file and failed to call that fact to the attorney's attention).

We concur with the motion judge that Rogers's notice of tort claim, filed more than "two years from the time of the accrual of the claim[,]" N.J.S.A. 59:8-8(b)[,] was barred.



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