Paul Bergrin, a former attorney who is now in prison because of a federal indictment charging him with arranging the murder of a potential witness in his client’s drug prosecution case, is at the core of a controversy recently decided by the Appellate Division in an application for post-conviction relief (PCR), filed by one of Bergrin’s former clients.

In the case before the court, Bergrin’s client was charge with a first and second-degree drug distribution.  The case was confounded by defendant’s exposed to an extended term of imprisonment because of a prior-first degree drug conviction.

The government’s plea offer required defendant to plead to the first and second degree distribution offenses and to expose himself to a $200,000 fine for the first-degree offense and a $100,000 fine for the second degree offense under the Anti-Drug Profiting Act (ADP).  In exchange, the government agreed to waive extended term liability.  At the sentencing, Bergrin did not appear, but sent an associate.  The associate agreed with the trial court that the fines were warranted given the circumstances of the case. At that point, defendant objected noting that he was only aware of a $100,000 fine and not an additional $200,000 fine.

Later, a public defender filed a PCR on behalf of defendant claiming Bergrin failed to provide effective legal assistance in that he failed to file a motion to abate the ADP fines.  The Public Defenders PCR application did not argue, however, that Bergrin’s assistance was also ineffective because he failed  to file a motion to suppress evidence or that the ADP fines were not contemplated by the client. When the trial judge rejected the argument on the original PCR application, the Public Defender’s Office returned with a second motion that inclined the two additional arguments identified above. That motion was rejected by the trial court as untimely.

The Public Defender Office appealed that decision and the Appellate Division remanded the case with instructions to the trial judge to determine if both Bergrin and the Public Defender who prosecuted the original PCR application provided defendant with ineffective legal representation.