DRUG/CRIMINAL DEFENSE ATTORNEY IN BERGEN (HACKENSACK), PASSAIC (PATERSON) AND MORRIS (MORRISTOWN) COUNTIES: TORT CLAIM NOTICE TIME BEGINS TO RUN IN A CRIMINAL CASE AFTER THE UNDERLYING CASE IS FINALLY ADJUDICATED

In 1999, an individual went on trial for drug-related offenses. During the trial, his attorney, a public defender, sought to discredit a witness's identification by having the defendant change his clothes with his brother. During the process, a court officer saw the men changing clothes. The ploy was presented to the jury during defendant’s cross examination in an effort to discredit defendant's credibility. Defendant was ultimately convicted and received a 14 year term of imprisonment.

The case was later reversed on a Post-Conviction Release Petition, where the Appellate Division determined that the lawyer's conduct was unethical and that her advice had seriously undermined the defendant's credibility before the jury.  At this point, defendant had served his six-year period of parole ineligibility and was released from prison.  The Cape May prosecutor did not agree to dismiss the indictment until many months later.

A few months after the dismissal of the indictment, defendant filed a civil action against the Public Defender's Office.  Shortly thereafter, the Public Defender's Office sought to dismiss the complaint, contending that defendant had a responsibility to file a tort claim notice within 90 days after the reversal by the Appellate Division. At the trial level, the public defender had the case dismissed based on this contention. That contention was later affirmed by the Appellate Division.

A few weeks ago,  the Supreme Court disagreed and determined that the dates that were relevant for purposes of determining when a tort claim notice should be filed would begin to run from the date when the prosecutor's office agreed to dismiss the indictment. Up to that point, the Supreme Court said, defendants jeopardy was still open.