Case Over NJ State Trooper's Swiping of Woman's Nude Cellphone Photos to Proceed Despite Late Notice

Photo: iStock/Susan Chiang

A state appeals court has ruled that a Monmouth County woman can proceed with her claim over a 2016 incident involving a New Jersey State trooper—who pulled her over, downloaded from her cellphone nude photographs meant to document her weight, and disseminated the images without her knowledge or consent.

The woman—who was in therapy for mental and personal issues, she claims—alleged the incident put her over the edge, causing her to spiral deeper into depression and anxiety to the point she couldn’t leave her house or take care of herself.

On Tuesday, an Appellate Division panel affirmed a judge’s decision to allow plaintiff Marielle Kuczinski, 27, of Millstone, to be able to file a late tort claim notice under the New Jersey Tort Claim Act against the state of New Jersey, the New Jersey State Police and the since-fired trooper, Marquice D. Prather.

“Defendants contend the judge abused his discretion in finding plaintiff established extraordinary circumstances that prevented her from filing a timely tort claim notice,” Appellate Division Judges Michael J. Haas and Thomas Sumners ruled in the per curiam decision Wednesday.

“We disagree and affirm based upon the judge’s credibility findings and thoughtful reasoning in his oral decision that defendants were not prejudiced by the late filing and that plaintiff’s medical conditions warranted extraordinary circumstances for filing a late tort claim.”

The case was argued Jan. 22 on appeal from Middlesex County Superior Court.

Christopher J. Riggs, Deputy attorney general, represented the defendants, who contended that Kuczinski had failed to present any extraordinary circumstances in accordance with the statue to warrant her filing an untimely tort claim notice.

Leland Moore, spokesman for the state Attorney General’s Office, declined comment Wednesday.

Attorney Fredrick L. Rubenstein of James P. Nolan and Associates in Woodbridge represented Kuczinksi.

“Obviously, Marielle and I are very pleased,” Rubenstein said Wednesday in a phone interview. “Unfortunately, Marielle had been undergoing therapy for nonrelated matters, and this situation with the state trooper and state of New Jersey seriously aggravated and exacerbated the issues she was having.

“Marielle was violated in unspeakable ways by this trooper, and the state of New Jersey should have known he was engaging in conduct that was inconsistent with serving and protecting the public,” Rubenstein added.

On Jan. 13, 2016, Kuczinski was driving on I-95 when she was pulled over by Prather for reasons not presently known, according to the decision, which references findings from an investigation by the State Police Office of Professional Standards (OPS) as well as other sources.

Kuczinski handed over her driver’s license and car registration to Prather, but did not have her insurance card with her. Instead, she gave Prather her cellphone, which contained a copy of her insurance card and nude images she took of herself.

The photos, according to Kuczinski's counsel, were meant to document her weight because of anorexia.

Prather went to his patrol car and subsequently walked back to Kuczinski to return her cell phone and driving credentials. He allowed her to leave without issuing a summons, according to the documents.

A year later, on Jan. 17, 2017, members of the New Jersey State Police OPS unit met with Kuczinski and informed her of an internal investigation revealing that Prather had removed some personal information and photos from her cellphone during that roadside stop a year earlier. It was discovered that Prather shared the photos with other troopers and disseminated them over the internet.

Prather ultimately pleaded guilty to third-degree invasion of property, fourth-degree tampering with physical evidence, and falsifying or tampering with records; sentenced to probation Dec. 8, 2017; and dismissed from the State Police, the court noted.

On Jan. 11, 2018, six days short of the one-year anniversary of learning that Prather had invaded her privacy, Kuczinski submitted a motion to file a late tort claim notice. She testified at an evidentiary hearing to supplement the certification she attached to the motion concerning extraordinary circumstances that she said justified a late tort claim notice under N.J.S.A. 59:8-9.

Kuczinski testified that after she was informed of Prather’s actions, the anxiety and depression she experienced from a physically abusive relationship, as well as the suicide of her best friend, were exacerbated. She also claimed her type 1 diabetes and autoimmune ailments were negatively impacted by the experience.

Kuczinski claimed she waited nine months to seek legal counsel over Prather’s misconduct because she was consumed with her physical and mental health issues.

On March 9, 2018, Superior Court Judge Vincent LeBlon issued an oral decision granting her motion to file a late tort claim notice.

The state defendants filed a notice of appeal April 23, 2018, asserting that LeBlon did not set forth his reasons for granting the motion.

LeBlon placed his oral decision on the record the next day as a result, saying he didn’t find the defendants prejudiced because they notified Kuczinski of her potential claim when they informed her of Trooper Prather’s misconduct against her.

“I find and believe that the plaintiff has established extraordinary circumstances under the New Jersey Torts Claim Act,” LeBlon wrote in his opinion, according to the appeals court. “I find that the plaintiff sustained severe psychological injuries as a result of the incident and, as such, this constitutes extraordinary circumstances.”

In Tuesday’s ruling, the Appellate Division panel said they found no abuse of discretion in LeBlon’s findings and conclusions, and that Kuczinski had provided sufficient medical proof of her deteriorating mental and physical state at her evidentiary hearing—unlike two previous, distinguishable Appellate Division cases involving similar circumstances, D.D. v. Univ. of Medicine and Dentistry of N.J. (2013) and O’Neill v. City of Newark (1997).

The plaintiffs in those cases, the panel said, provided “medical proofs that were insufficient” to support their reasons for not filing a timely tort claim notice.

“Unlike D.D. and O’Neill, ... plaintiff here described in detail how her feeling of helplessness from Prather’s actions prompted her to focus on her health by seeing a therapist, which in turn prevented her from consulting an attorney regarding the possible redress of her violated rights,” Haas and Sumners said.

“Significantly, Judge LeBlon determined plaintiff was so incapacitated by the disclosure of Prather’s actions, which exacerbated her pre-existing condition to the extent that it affected her ability to file a timely tort claim notice against defendants.”

Plaintiffs attorney Rubenstein said his client in the same complaint also lodged a claim against the state and State Police for violations of the New Jersey Law Against Discrimination for denial of a public accommodation.

“Trooper Prather only pulled over women to get their private information and/or photographs or videos and decided to disseminate them to his colleagues or pornographic websites,” Rubenstein said. “What you have here is the highway my client was traveling on. She was lawfully on that highway, a female entitled to the protection afforded under the LAD.

“Our allegation is that Interstate-95 fits within the definition of a place of public accommodation,” he said. "The state of New Jersey is either the owner or proprietor of I-95, and this particular trooper pulled over, on at least 30 occasions, other women, requesting their mobile phones under false pretenses. By doing so, his actions essentially denied Miss Kuczinski the accommodations, advantages, or privileges of being able to operate her vehicle on any state highway.

“Most importantly, he did this exclusively based on her gender,” Rubenstein said. “There was no reason for stopping her or any of the other victims other than on the basis of their gender.”

The State Police investigation did not indicate whether any other claimants filed a timely tort claim notice regarding Prather’s invasion of privacy, according to the Appellate Division ruling.