professional negligence

A New Jersey appeals court has dismissed a legal malpractice lawsuit filed against the Office of the Public Defender by a man who served 12 years in prison before his sexual assault conviction was overturned.

The malpractice suit by Antonio Chaparro Nieves was dismissed for failure to comply with procedural requirements of the Tort Claims Act. Nieves failed to cite medical or psychiatric expenses that can be counted toward the Tort Claims Act’s $3,600 verbal threshold, and he failed to submit objective medical evidence to establish a permanent injury and substantial loss of bodily function, the appeals court said. Those omissions violate the Supreme Court’s 2011 holding in Rogers v. Cape May Office of the Public Defenderwhich held that such claims are subject to the provisions of the TCA, the appeals court said in Nieves v. Office of the Public Defender.

But Nieves’ lawyer, Thomas Flinn of Garrity, Graham, Murphy, Garofalo & Flinn, says he will ask the Supreme Court to review the case. Flinn said the appeals court decision failed to address numerous points in his papers, including his argument about the interplay between the TCA and the Public Defender Act.

The appeals court adopted the state’s argument that malpractice claims against the Office of the Public Defender are subject to the TCA because of the need to protect the public fisc, but that argument conflicts with the TCA’s provision that clients of the public defender are to be represented without regard to the resources required to mount an effective defense, said Flinn.

Nieves was convicted in 2003 of first-degree aggravated sexual assault and third-degree robbery in connection with an attack on an 18-year-old woman in Elizabeth. At the time, Nieves was 48 years old, just over 6 feet tall and weighed 215 pounds, nearly twice as old and much taller and heavier than the assailant described by the victim.

Nieves filed a motion for a new trial in 2011, citing his public defender’s failure at trial to call a construction worker who saw a man fleeing the crime scene. That witness’ description of the assailant was consistent with the victim’s description and at odds with Nieves’ actual appearance, according to the National Registry of Exonerations, a database complied as a joint venture of several law schools.

A trial court denied the motion but the Appellate Division reversed that decision. A motion for a new trial was granted in March 2014 and he was released on bond the following October. In November 2014, after a DNA test of the victim’s clothing linked the attack to someone else, a judge granted a joint motion by the prosecution and defense to dismiss the charges, according to the Registry of Exonerations.

Nieves sued the state under the Mistaken Imprisonment Act and was awarded $669,607 in 2016, according to the Attorney General’s Office.

A separate lawsuit against the Office of the Public Defender and attorney Peter Adolf alleged legal malpractice and violations of the Rules of Professional Conduct. In January 2018, Judge Camille Kenny of the Superior Court of New Jersey threw out the claims based on the Rules of Professional Conduct but declined to dismiss the malpractice claim.

On appeal, Judges Carmen Alvarez, William Nugent and Hany Mawla reversed Kenny’s ruling on the malpractice claim. They said the “heart of the appeal” was whether the procedural requirements of the TCA apply where a public defender does not properly represent a criminal client. The Supreme Court has spoken on that issue, the panel said, citing the court’s holding in Rogers, another legal malpractice suit against the Public Defender’s Office, that damage claims are subject to the provisions of the TCA.

Melissa Raksa represented the attorney general on the appeal. A spokesman for the attorney general, Lee Moore, said the office would not comment on the ruling.

Flinn said his argument was that applying the TCA “makes a public defender less accountable than a privately retained lawyer.” He added that the Rogers case cited by the appeals court pertained to a statute-of-limitations issue and was not applicable to the present case.