$______ VERDICT - CIVIL RIGHTS - WRONGFUL IMPRISONMENT - PLAINTIFF CONVICTED OF BEING ACCOMPLICE TO MURDER AND SENTENCED TO 2 LIFE SENTENCES - PLAINTIFF SERVES 17 YEARS BEFORE CONVICTION OVERTURNED - PLAINTIFF BRINGS SUIT TO RECOVER DAMAGES FOR LOSS OF LIBERTY DUE TO WRONGFUL CONVICTION.

• Pages: 3-5

REFERENCE

Polifonte vs. D’Amario-Aubin, et al. Docket no. PAS-L-4200-17, 06-12-20.

Attorney for plaintiff: Christopher DiGirolamo of Maggiano, DiGirolamo

& Lizzi in Fort Lee, NJ.

COMMENTARY

It should be noted that in addition to recovering the full coverage of $2,225,000 from the auto-

mobile carrier, the plaintiff obtained $1,000,000 personally from the defendant driver. In this

regard, the fact that the plaintiff had already obtained $3,475,000 months earlier rendered

the continuation of the litigation against the tavern much easier. The defendant driver was

present at the tavern for approximately 2 ½ hours, during which time; she indicated she had

only had a glass and ½ of wine. Although thedefendant driver was on the surveillance camera,

the shots were from behind, showed her sitting at the bar, and the tavern would have argued

thattherewerenosignsofvisibleintoxication.

Theplaintiff,whowouldhavearguedthatthelocation of the plaintiff relative to the camera ac-

counted for the absence of such overt signs, would have also pointed to the testimony of the in-

vestigating officer that the defendant driver was mumbling and had bloodshot eyes; arguing

that in view of this evidence and high BAC of.141, which the plaintiff’s toxicologist opined

would result in such visible signs, it was clear that the defendant driver showed such signs and

may well have consumed alcohol earlier in the day and wasshowing visible signs from the time

shefirstenteredthebarthatshouldhavebeenobserved bythebartender.Thedefendant’s tox-

icologist concluded that the video did not show any signs of visible intoxication, 1 ½ glasses of

winein 2 ½ hours was not unreasonable and any mumbling speech or bloodshot eyes observed

by the police were after her face and head were struck hard by the airbag.

$1,454,059 VERDICT – CIVIL RIGHTS – WRONGFUL

IMPRISONMENT – PLAINTIFF CONVICTED OF BEING

ACCOMPLICE TO MURDER AND SENTENCED TO 2 LIFE

SENTENCES – PLAINTIFF SERVES 17 YEARS BEFORE

CONVICTION OVERTURNED – PLAINTIFF BRINGS SUIT

TO RECOVER DAMAGES FOR LOSS OF LIBERTY DUE TO

WRONGFUL CONVICTION.

Mercer County, NJ

In this wrongful imprisonment case, the plaintiff asserted that the

defendant state mistakenly accused and convicted him of being an

accomplice to murder and that he was owed damages for his loss of

liberty for a crime he did not commit. The plaintiff moved for

summary judgment as to liability on his claim for civil damages

brought under the “Mistaken Imprisonment Act Claim.” The

defendant opposed the plaintiff’s motion for summary judgment.

The plaintiff argued that, per N.J. Court Rules, R. 4:46-2, the “..evidence

presents a sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a matter of law.”

The plaintiff argued that he met the requirements of the Mistaken Impris-

onment Act since he was convicted of a crime and subsequently sen-

tenced to a term of imprisonment, served all or part of his sentence; and

he did not commit the crime for which he was convicted; and he did

not by his own conduct cause or bring about his conviction. The plaintiff

asserted that, based on the State’s admissions and under the doctrine of

the law of the case (Kamienski v. State, 451 N.J. Super. At 512 n.4) ele-

ments of the statute regarding his serving time and not being the cause

of his own conviction had been satisfied. The plaintiff claimed that he es-

tablished his entitlement to summary judgment by showing by clear and

convincing evidence that either he did not perform the proscribed act or

he did not possess the requisite mens rea.

The crimes at issue in this action were 2 counts of first degree murder

and 1 count of felony murder stemming from September 1983 homi-

cides and theft of 3 kilograms of cocaine from the victims. The plaintiff

was convicted of these crimes under the theory of accomplice liability.

SUMMARIES WITH TRIAL ANALYSIS 3

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