On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4495-08.
The opinion of the court was delivered by: Lihotz, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, R. B. Coleman and Lihotz.
The opinion of the court was delivered by LIHOTZ, J.A.D.
Plaintiff*fn1 Jeffrey Marrero was tried and convicted by a jury of armed robbery. His conviction was reversed on appeal and the State declined to pursue retrial. This matter involves Marrero's professional negligence action against criminal defense counsel, defendants Howard Feintuch, his law firm Feintuch, Porwich & Feintuch and law partners, Philip Feintuch and Alan Porwich. Marrero's complaint sought repayment of the legal fees paid, compensatory damages, punitive damages and counsel fees and costs. Generally, Marrero alleged defendants failed to introduce evidence supporting his alibi defense, which he maintained would have defeated prosecution in the first instance.
Defendants, by our leave granted, appeal from a June 25, 2010 interlocutory order denying reconsideration of a May 14, 2010 order quashing a subpoena to obtain witness testimony. Defendants asserted the information sought was relevant to refute Marrero's alibi and to show they were not negligent in providing his criminal defense. The trial court quashed the subpoena, determining Marrero's guilt of the criminal offense was not relevant in the malpractice action.
Following our examination, we conclude the motion judge exceeded her discretion in barring the pretrial discovery deposition testimony, as the evidence may be relevant to defeat plaintiff's malpractice claims. Accordingly, we reverse the May 14, 2010 order quashing the subpoena and the June 25, 2010 order denying reconsideration.
The facts of the underlying criminal matter are recited in our unpublished opinion reversing Marrero's conviction. State v. Marrero, No. A-4141-05 (App. Div. June 7, 2007). We restate those facts necessary to understand the context of the issues under review.
Defendants were hired as Marrero's criminal defense counsel following his indictment in connection with the January 11, 2005 knife-point robbery of Ralph Greiss, the owner of St. Mina's Deli. Marrero, supra, slip op. at 2. After the robbery, Greiss chose Marrero's picture from a photographic array. Id. at 3. At trial, when asked whether he saw the perpetrator in the courtroom, Greiss said, "He's not here." Id. at 2. When asked a second time to find the man who robbed him in the courtroom, Greiss chose a member of the jury. Id. at 4.
Severo Cordero, a customer who had entered the deli as the robbery was taking place, also testified. Ibid. Cordero explained he briefly saw the face of the perpetrator as he exited the deli. Ibid. When asked by police to view suspect photographs, Cordero chose a picture of someone who he stated "resembled" the perpetrator. Id. at 5. Ibid. Cordero advised he was not certain the photograph was of the robber. Ibid. Cordero's in-court identification was equally equivocal. Ibid. He stated Marrero "looked just like" the robber he saw, but he was not "100 percent" sure Marrero was the person responsible for the stick-up. Ibid.
Marrero's girlfriend Christine Vuolo was called by the defense. She stated that at about 6:30 p.m. Marrero telephoned her and they talked for approximately "fifteen to twenty minutes." Marrero's telephone records, which were not introduced to corroborate Vuolo's testimony, verified that on the date of the robbery, a call was placed from his residence at 6:32 p.m., which lasted until 6:38 p.m. The robbery occurred at 6:57 p.m.
The jury found Marrero guilty and he was sentenced to five years imprisonment, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Id. at 2. On appeal, we overturned the conviction, principally based on judicial errors. We remanded the matter for a new trial. Id. at 15.
Following a discussion with appellate counsel, the State declined to pursue further prosecution and recommended dismissal of the indictment. In a memo to the trial judge supporting the requested dismissal, Assistant Hudson County Prosecutor Leo Hurley identified problems that thwarted prosecution. These included the equivocal victim identification, Marrero's telephone records corroborating Vuolo's testimony regarding their telephone call, and the defense proffer of another witness it proposed to call at retrial who telephoned Marrero at home at 6:32 p.m., which was also corroborated by the telephone records. Hurley concluded:
Given that the armed robbery occurred . . . at 6:57 p.m. and that testimony backed by certified telephone records would show that [Marrero] was on the phone with two different people until roughly 6:38 p.m. on January 11, 2005, it is highly unlikely that he could travel a mile and a half to the St. Mina's Deli in order to commit the armed robbery of that store. Greiss's identification of a juror as the perpetrator of the armed robbery during the first day of trial further buttresses this conclusion.
The court dismissed the indictment. On June 11, 2007, Marrero was released from prison after serving one year and ...