NJ Sen. Nicholas Scutari Under Microscope for Alleged Absences as Prosecutor

The U.S. Court of Appeals for the Third Circuit has reopened a civil rights suit stemming from New Jersey Senate President Nicholas Scutari’s allegedly frequent absences while serving as municipal prosecutor in Linden.

The federal appeals court said in a precedential ruling that plaintiff Yasmine Coello’s suit, which attacks the validity of her conviction on a harassment charge, did not accrue for statute-of-limitations purposes until the underlying criminal case was favorably terminated.

Judge Thomas Ambro of the U.S. Court of Appeals for the Third Circuit. Courtesy photo

The suit’s reinstatement could create awkward moments for Scutari. Coello claimed that Scutari’s absences, and a series of missteps that followed, caused her to serve 18 days in jail on a harassment charge that was later dismissed.

Judge Thomas Ambro, joined by Senior Judge Anthony Scirica and Senior Judge William Byrd Traxler Jr. of the U.S. Court of Appeals for the Fourth Circuit, sitting by designation, said they had “little trouble” concluding that Coello’s 42 U.S.C. §1983 claims fall under the sphere of a 1994 Supreme Court ruling, Heck v. Humphrey, which said a federal court cannot hear a prisoner’s federal civil rights claim unless the prisoner can first show that the conviction was overturned.

“A Section 1983 claim sounding in malicious prosecution accrues when the prosecution terminates without a conviction. Accordingly, because Coello’s Section 1983 claims sound in malicious prosecution, we hold that the favorable-termination requirement was met on February 26, 2018, when the state court vacated her criminal conviction,” Ambro wrote for the court.

New Jersey State Sen. Nicholas Scutari. Courtesy photo

Coello was convicted of harassment before then-Linden Municipal Court Judge Louis M.J. DiLeo in March 2007 and sentenced to 30 days in jail in January 2008. Coello was released after serving 18 days.

She filed for postconviction relief in 2016, her conviction was vacated in 2018 and she filed the civil rights suit in 2020. It’s unclear why so many years passed between Coello’s conviction and sentencing and her bid for postconviction relief.

New Jersey gives litigants two years to file personal injury claims. U.S. District Judge Susan Wigenton said Coello’s civil rights claim accrued in 2008, at the time of sentencing, and therefore her civil rights claim was time-barred by the time it was filed in 2020.  Wigenton dismissed the civil rights suit with prejudice.

On appeal, lawyers for Scutari, DiLeo, onetime Linden Mayor Richard Gerbounka and the city asked the court to find that if the plaintiff waits too long to have her conviction reversed, she forfeits any civil claims that might accrue on a favorable termination. But the court declined, saying, “we see no need at this time to complicate further our Heck inquiry by imposing the abstract diligence requirement suggested.”

The key date to consider when deciding accrual is when the conviction was overturned, the panel said.

When Coello was tried on the harassment charge, DiLeo appointed Kathleen Estabrook as a so-called private prosecutor. Estabrook failed to disclose that she also represented Shirley Messina in a separate matter. At the time, Coello was dating Messina’s former boyfriend, and Messina filed the harassment charge against Coello.

“Coello may have known she was wronged by the Linden Defendants’ alleged misconduct back in the aughts, at the time of her criminal prosecution. But her current claims, all of which attack the validity of those state proceedings, did not exist until much later. Because these claims accrued for statute-of-limitations purposes when her harassment conviction was vacated in February 2018, her federal complaint was timely filed. We therefore reverse and remand for the District Court to consider the other arguments raised by the Linden Defendants in their motion to dismiss, including whether any of those defendants is entitled to immunity from this action,” Ambro wrote.

Robert Varady of LaCorte, Bundy, Varady & Kinsella, who represents Scutari, DiLeo, Gerbounka and Linden, declined to comment on the Third Circuit ruling other than to say that in addition to the statute-of-limitations issue, other grounds for dismissal were pending in the underlying case that were never ruled on. Varady said he looks forward to raising those motions again. Scutari did not immediately respond to a request for comment. Parsippany attorney Brian Singleton, representing Coello on appeal, did not respond to a request for comment about the ruling.

Scutari was turned down for reappointment to the Linden prosecutor position in 2020 after 15 years on the job. He was drawing a salary of roughly $84,000 for the position.

Coello is not the first litigant to bring a suit over alleged irregularities in Linden Municipal Court.

In 2017, the city paid $575,000 to settle a lawsuit by two brothers, Wendell and Anthony Kirkland, who were convicted of theft in a proceeding where DiLeo served as both judge and prosecutor in the absence of Scutari.

Scott Moynihan, a Superior Court judge who vacated the brothers’ convictions, called their trial a “perversion of justice.”