                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3628-18T3

DION HARRELL,

          Plaintiff-Appellant,

v.

STATE OF NEW JERSEY
DEPARTMENT OF THE
TREASURY,

     Defendant-Respondent.
________________________

                    Argued January 13, 2020 – Decided February 25, 2020

                    Before Judges Sabatino, Sumners and Natali.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Monmouth County, Docket No. L-2768-18.

                    Glenn Andrew Garber argued the cause for appellant.

                    Brett J. Haroldson, Deputy Attorney General, argued
                    the cause for respondent (Gurbir S. Grewal, Attorney
                    General, attorney; Melissa H. Raksa, Assistant
                    Attorney General, of counsel; Brett J. Haroldson, on the
                    brief).

PER CURIAM
      In 1993, plaintiff Dion Harrell was convicted by a jury of second-degree

sexual assault, a crime that he indisputably did not commit. He completed his

sentence for that crime, and a separate burglary charge, in 1997. After DNA

evidence obtained on July 13, 2016 excluded him as the assailant in the sexual

assault, he requested that the Monmouth County Prosecutor vacate his sentence.

On August 3, 2016, the Monmouth County Prosecutor consented to vacate

Harrell's sexual assault conviction along with two related convictions for

Megan's Law, N.J.S.A. 2C:7-1 to -11, violations.

      Less than two years later, on August 1, 2018, Harrell filed a complaint

against the New Jersey Department of the Treasury (Department) seeking money

damages under the Compensation for Persons Mistakenly Imprisoned Act

("MIA" or "Act"), N.J.S.A. 52:4C-1 to -7, for the period he was wrongfully

imprisoned and for the time he was improperly forced to register as a sex

offender. The Department filed a motion to dismiss for failure to state a claim

under Rule 4:6-2(e), contending that Harrell, while innocent of the sexual assault

charge, failed to file his claim within two-years "after his release from

imprisonment"1 as specifically prescribed by the MIA. N.J.S.A. 52:4C-4.



1
  The MIA also permits an individual to file within two years "after the grant of
a pardon," a circumstance inapplicable here. N.J.S.A. 52:4C-4.
                                                                          A-3628-18T3
                                        2
      Relying on Watson v. N.J. Dep't of Treasury, 453 N.J. Super. 42 (App.

Div. 2017), the trial court granted the Department's motion. We fully agree with

the trial court's well-reasoned analysis that Harrell failed to file his claim within

two-years of his release from prison as required by the MIA and is time barred

under the clear and unambiguous language of the statute.            We also reject

Harrell's request that we equitably toll the statutory period.

                                         I.

      We discuss the relevant and undisputed factual background and

procedural history of Harrell's convictions and his request for compensation

under the MIA to provide context for our opinion. In September 1988, a

seventeen-year old girl was grabbed from behind by her neck and dragged with

her mouth covered into an empty parking lot where she was sexually assaulted.

After the assailant stole her purse, he left the victim who ran home, told her

mother who then called the police. The victim was then taken to the emergency

room where a rape kit obtained from her examination was turned over to police,

refrigerated, and transported to the New Jersey State Police East Regional

Laboratory for analysis.

      Despite claiming he was elsewhere playing basketball with friends at the

time of the sexual assault, Harrell was arrested shortly thereafter and released


                                                                             A-3628-18T3
                                         3
on bail pending trial. Harrell was tried and convicted of second-degree sexual

assault and sentenced to an eight-year custodial term.         At the time of his

conviction, Harrell had a pending unrelated third-degree burglary charge for

rummaging through a parked vehicle. Harrell pled guilty to the burglary charge

and was sentenced to a four-year prison term, to run consecutively to the sexual

assault conviction.

      Harrell served four years in prison before being released on parole on

March 26, 1997. Following his release, Harrell was required to register as a sex

offender under Megan's Law. Harrell failed to comply with the registry program

and was arrested, pled guilty, and re-imprisoned on two separate occasions, June

25, 2004, and July 17, 2013.

      In his merits brief, Harrell states that "at the time of [his] prosecution and

. . . release, DNA testing was not available." He further asserts, without any

record support, that "in 2002, when the law changed to permit DNA testing for

incarcerated defendants asserting innocence, [he] reached out to the Innocence

Project for assistance" but was "turned away" "because the law at the time only

applied to incarcerated defendants." In his verified petition, he asserted that "in

2014 the Innocence Project took on [his] case and filed a motion to have DNA

testing done . . . [and] [a]fter . . . initial opposition by the Monmouth County


                                                                            A-3628-18T3
                                         4
Prosecutor, the motion was granted on consent on February 13, 2015. " On July

13, 2016, a report from Bode Cellmark Forensic excluded Harrell as the assailant

in the sexual assault, "conclusively proving his innocence." Harrell's sexual

assault conviction and the two Megan's Law violations were subsequently

vacated on August 3, 2016.

      On August 1, 2018, Harrell filed a verified complaint in the Law Division,

seeking compensation for his wrongful imprisonment under the MIA. The

complaint requested relief of $50,000 per year for each year Harrell served in

prison for his wrongful conviction, and $25,000 per year for each year he was

on the sex offender registry.

      In opposing the Department's motion to dismiss, Harrell argued that the

MIA should be interpreted expansively to allow claims to be brought within two

years of a sentence being vacated. He maintained that reading the statute to

permit only claims to be brought within two years of release from prison, or two

years from the date of a pardon, would be contrary to the Legislature's intent.

Harrell alternatively argued that equitable tolling should apply to permit his

belated filing.

      In his oral decision, the trial judge reasoned that Harrell's failure to file

his complaint within two years of being released from prison barred his claim.


                                                                           A-3628-18T3
                                        5
Although the judge did not specifically address Harrell's equitable tolling

argument, the judge was clearly aware of the equities attendant to his decision,

commenting:

            The real issue is when does this cause of action accrue.
            And is this one of those instances where the
            [L]egislature just got it wrong. And if you look at their
            intent which, you know, I realize the traditional
            arguments advanced here are the [L]egislature is
            presumed to act correctly when they act. But as
            plaintiff's counsel does indicate, there are those rare
            circumstances where if you ask me to read this
            legislation in a remedial fashion to protect those who
            have been wrongly incarcerated, then I need to take a
            little bit more of an expansive view of this.

The judge further noted:

            [U]ntil the charges were vacated, it would have been an
            immediate [Rule] 4:62 motion probably filed by a
            frivolous litigation letter had any attorney brought suit
            saying that my client's innocent and you know he's
            entitled to compensation under the [MIA] when there
            would be a valid, an undisturbed criminal conviction.

      The judge nonetheless acknowledged that he was bound by this court's

authority in Watson, 453 N.J. Super. at 42, to strictly apply the "clear and

unambiguous" two-year statute of limitations imposed by the MIA. This appeal

followed.

      Before us, Harrell raises the same two arguments rejected by the trial

court. First, he maintains that despite the MIA's clear language, this court can

                                                                        A-3628-18T3
                                       6
and should interpret the statute to give it the meaning and effect the Legislature

intended by allowing him to bring his claim within two years of his vacated

conviction. Second, he contends that we should apply the doctrine of equitable

tolling as an alternative remedy because plaintiff was prevented from asserting

his rights "in some extraordinary way."

      In response, the Department contends that the clear and unambiguous

language of the MIA bars Harrell's untimely claims and the facts here do not

warrant the equitable tolling of the statutory period.      The Department also

advances two arguments not presented to the trial court.           Specifically, it

maintains that because Harrell pled guilty to Megan's Law offenses, "he could

not recover for any time spent in prison as a result of [those] violations." The

Department also claims that even though Harrell received a consecutive, and not

a concurrent sentence, "he would have still . . . spent four years in prison for the

burglary regardless of the outcome of the sexual assault charges" and

consequently he should not receive any compensation for the four years he was

unjustly incarcerated on the sexual assault offense.

                                      II.

      We review an order granting a motion to dismiss de novo and we owe no

deference to the trial court's conclusions. Castello v. Wohler, 446 N.J. Super.


                                                                            A-3628-18T3
                                            7
1, 14 (App. Div. 2016); Rezem Family Assocs., LP v. Borough of Millstone,

423 N.J. Super. 103, 114 (App. Div. 2011). A motion to dismiss for failure to

state a claim must be denied if, giving plaintiff the benefit of all his allegations

and all favorable inferences, a claim has been made out. R. 4:6-2(e); Banco

Popular North America v. Gandi, 184 N.J. 161, 165 (2005). The inquiry is

limited to examining the legal sufficiency of the facts alleged on the face of the

complaint. Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739,

746 (1989).

      Effective August 25, 1997, the MIA provides a cause of action for

individuals who were imprisoned and can prove by clear and convincing

evidence that they are innocent of the crime for which they served time. The

Act provides:

              The Legislature finds and declares that innocent
              persons who have been convicted of crimes and
              subsequently imprisoned have been frustrated in
              seeking legal redress and that such persons should have
              an available avenue of redress to seek compensation for
              damages. The Legislature intends by enactment of the
              provisions of this act that those innocent persons who
              can demonstrate by clear and convincing evidence that
              they were mistakenly convicted and imprisoned be able
              to recover damages against the State.

              In light of the substantial burden of proof that must be
              carried by such persons, it is the intent of the
              Legislature that the court, in exercising its discretion as

                                                                            A-3628-18T3
                                          8
            permitted by law regarding the weight and admissibility
            of evidence submitted pursuant to this section, may, in
            the interest of justice, give due consideration to
            difficulties of proof caused by the passage of time, the
            death or unavailability of witnesses, the destruction of
            evidence or other facts not caused by such persons or
            those acting on their behalf.

            [N.J.S.A. 52:4C-1.]

      "[T]he Act is remedial legislation intended to facilitate the claims of

innocent persons who have been wrongly convicted of crimes and subsequently

imprisoned by according them remedies over and above those already existin g .

. . ." Mills v. State, 435 N.J. Super. 69, 77 (App. Div. 2014) (internal quotations

omitted). In order to recover damages under the MIA, a claimant is required to

prove, by clear and convincing evidence, each of the following elements:

            a. That he was convicted of a crime and subsequently
            sentenced to a term of imprisonment, served all or any
            part of his sentence; and

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

            c. He did not commit or suborn perjury, fabricate
            evidence, or by his own conduct cause or bring about
            his conviction . . . ; and

            d. He did not plead guilty to the crime for which he was
            convicted.

            [N.J.S.A. 52:4C-3.]


                                                                           A-3628-18T3
                                        9
      Because the "Act is, in part, a waiver of [state] sovereign immunity," it is

not without limits. Mills, 435 N.J. Super. at 77.        In this regard, a falsely

imprisoned person who wishes to recover under the MIA must bring his or her

claim "within a period of two years after his release from imprisonment, or after

the grant of a pardon to him . . . ." N.J.S.A. 52:4C-4. For individuals like Harrell

whose release preceded the MIA's 1997 enactment, the statute provided that

"any eligible claimant released or pardoned during the five-year period prior to

May 2, 1996 shall have two years from the effective date of [the] act to file suit."

Thus, the MIA by its plain language does not permit a vacated sentence to be

the triggering date for the accrual of the statute of limitations.

      Statutes of limitations serve at least three important policy interests. The

first is to instill in society a "'measure of repose.'" Caravaggio v. D'Agostini,

166 N.J. 237, 245 (2001) (quoting Farrell v. Votator Div. of Chemetron Corp.,

62 N.J. 111, 115 (1973)). The New Jersey Supreme Court has recognized this

as the primary benefit of statutes of limitations, finding that "eventual repose

creates desirable security and stability in human affairs." Galligan v. Westfield

Centre Serv., Inc., 82 N.J. 188, 191-92 (1980).

      Second, the statutes encourage the prompt settlement of disputes, so that

potential litigants do not sit on their rights. "By penalizing unreasonable delay,


                                                                            A-3628-18T3
                                        10
such statutes induce litigants to pursue their claims diligently so that answering

parties will have a fair opportunity to defend." Id. at 192 (citations omitted);

see also Troum v. Newark Beth Israel Med. Ctr., 338 N.J. Super. 1, 22 (App.

Div. 2001). Third, statutes of limitations help assure that judges and juries do

not have to adjudicate "stale claims." Mitzner v. W. Ridgelawn Cemetery, Inc.,

311 N.J. Super. 233, 236 (App. Div. 1998).

                                      III.

      Harrell offers five reasons in support of his first argument on appeal.

Initially, he contends that a literal reading of the statute would produce an

"absurd result" and is "at odds with the overall statutory scheme" because

despite his "diligent" efforts to pursue exoneration, he was not allowed to make

use of DNA testing to prove his innocence within the two-year period after his

release from prison.

      Second, he argues that we should view the MIA in conjunction with

related legislation that permits DNA testing for the wrongfully convicted.

According to Harrell, if the Legislature in 2015 recognized that DNA testing

should not be limited to people still in prison, then the MIA, which is intertwined

with the overall post-conviction statutory scheme, should be interpreted to




                                                                           A-3628-18T3
                                       11
accept claims that are brought within two years of exoneration, when the claim

first becomes cognizable.

      Third, he maintains that under the MIA, Harrell must prove by clear and

convincing evidence that "[h]e did not commit the crime for which he was

convicted," N.J.S.A. 52:4C-3, a showing he contends was impossible for him to

make until his conviction was reversed, because a criminal conviction is

conclusive evidence of guilt.

      Fourth, he posits that the pardon provision in the MIA supports his

interpretation that a person should be able to bring a claim within two years of

their conviction being vacated because a pardon exoneree would be able to

achieve relief under the Act even though more than two years has passed since

being released from prison. Harrell argues it is therefore "illogical" for the

Legislature to afford access to this type of exoneree yet preclude someone like

Harrell who is equally worthy.

      Fifth, he claims that if forcing a claimant to file suit under the MIA before

he is released from custody was considered unfair by the Legislature (as

evidenced by the accrual date of the statute of limitations not beginning to run

until after release from prison), it is "inconceivable" that the Legislature wanted

the statute of limitations to begin running before a claim can even be proven.


                                                                           A-3628-18T3
                                       12
      We have thoroughly considered all of these arguments and reject them as

they effectively request that we re-write a clear and unambiguous statute and

ignore the Legislature's clear manifestation that claims like Harrell's must be

filed within two years "after his release from imprisonment" or "after the grant

of a pardon." The vacatur of a sentence or dismissal of criminal charges simply

is not a triggering event under the MIA.

      When interpreting a statute, we begin with its plain language, which is the

"best indicator" of legislative intent. State v. Rodriguez, 238 N.J. 105, 113

(2019). A statute's plain language "must be construed 'in context with related

provisions so as to give sense to the legislation as a whole.'" Ibid. (quoting

Spade v. Select Comfort Corp., 232 N.J. 504, 515 (2018).             "Unless it is

'inconsistent with the manifest intent of the legislature,' or 'another or different

meaning is expressly indicated,' we ascribe to the Legislature's words and

phrases 'their generally accepted meaning, according to the approved usage of

the language.'" Finkelman v. Nat'l Football League, 236 N.J. 280, 289 (2019)

(quoting N.J.S.A. 1:1-1).

      "If the plain language leads to a clear and unambiguous result, then our

interpretive process is over." Johnson v. Roselle EZ Quick LLC, 226 N.J. 370,

386 (2016) (quoting Richardson v. PFRS, 192 N.J. 189, 195 (2007)). However,


                                                                            A-3628-18T3
                                        13
"if there is ambiguity in the statutory language that leads to more than one

plausible interpretation, we may turn to extrinsic evidence, 'including legislative

history, committee reports, and contemporaneous construction.'" DiProspero v.

Penn, 183 N.J. 477, 492-93 (2005).

      This court has previously interpreted the statute of limitations provision

of the MIA in Watson, 453 N.J. Super. at 47. In that case, the trial court granted

the State's motion to dismiss because Watson did not file his complaint within

two years of being released from prison. Ibid. Before us, Watson argued that

the two-year limitation period should begin to run when his 1988 conviction was

vacated, as opposed to two years after he was released from prison. Id. at 46-

47. We rejected that argument and affirmed the trial court's decision and found

"the plain language [of the statute] is clear and unambiguous," id. at 49, and

reasoned:

            The statute identifies two triggering events from which
            to calculate the two-year statute of limitations: release
            from imprisonment or a pardon. It is apparent from the
            plain language of the MIA that the Legislature
            considered pardon to be a separate and independent
            triggering event. The Legislature did not include as a
            triggering event, reversals or vacatur of convictions
            subsequent to a criminal defendant's release from
            imprisonment. The legal consequences of each are not
            always equivalent.

            [Ibid. (emphasis added).]

                                                                           A-3628-18T3
                                        14
      Harrell points out that the facts in Watson are distinguishable from the

facts here. He argues Watson was most likely guilty and his sentence was

vacated on constitutional grounds rather than innocence grounds, and that he

committed many other serious crimes. Further, Watson had an opportunity to

vacate his sentence in 2000 and chose not to do so, instead waiting fourteen

years after the remedy became available to seek vacatur. In contrast, Harrell

alleges (without record support) that he sought assistance from the Innocence

Project to vacate his sentence in 2002.

      While we acknowledge that Harrell is an eminently more sympathetic

party than Watson, and the circumstances regarding his claim are clearly

distinct, the Watson holding was not premised on any of those distinguishing

facts. Rather, the Watson court correctly interpreted the statute of limitations

provision of the MIA to not include reversals or vacaturs of convictions as

additional triggering events that start the limitations clock, a conclusion we still

endorse.

      Turning to Harrell's remaining arguments, we reject his claim that he was

unable to access his DNA evidence until 2016 as unsupported by the record and

speculative. In addition, we find no support in the text of the MIA that the




                                                                            A-3628-18T3
                                        15
Legislature intended it to be read in conjunction with N.J.S.A. 2A:84A-32A,2

and certainly not in a manner that contravenes the clear statutory period for

bringing claims. See Carlson v. City of Hackensack, 410 N.J. Super. 491, 497

(App. Div. 2009) (holding that because the statutory language was "clear and

unambiguous, [the court] need not resort to reading the statutes in pari materia").

      Further, the pardon exception, rather than supporting Harrell's argument

undermines it. Indeed, by permitting the two-year statutory period to accrue

upon a pardon, the Legislature clearly expressed its intent that an event, other

than the release from prison, can trigger accrual. The Legislature did not

identify a vacated conviction as such an event, however. We therefore cannot

conclude under these circumstances that the dismissal of Harrell's complaint,

while understandably disappointing to him, is an "absurd" result or one that was

"inconceivable" to the Legislature.




2
    Amended in 2015 and effective March 1, 2016, N.J.S.A. 2A:84A-32A
provides procedures for obtaining DNA evidence. As currently enacted, it
permits "[a]ny eligible person [to] . . . make a motion before the trial court that
entered the judgment of conviction for the performance of forensic DNA
testing." (Emphasis added). A previous version of that statute, effective July 7,
2002, permitted only a "person who was convicted of a crime and . . . currently
serving a term of imprisonment" to request DNA testing.



                                                                           A-3628-18T3
                                       16
                                      IV.

      Harrell alternatively requests that this court apply the doctrine of equitable

tolling3 to allow him to bring a claim under the MIA, contending that he was

prevented from asserting his rights "in some extraordinary way." Specifically,

he maintains that at all relevant times, "New Jersey law barred Harrell from

seeking DNA testing to prove his innocence until 2016, when [N.J.S.A.]

2A:84A-32A was amended."

      "Equitable tolling is traditionally reserved for limited occasions." F.H.U.

v. A.C.U., 427 N.J. Super. 354, 379 (App. Div. 2012). A statute of limitations

may be tolled "(1) [if] the defendant has actively misled the plaintiff, (2) if the

plaintiff has 'in some extraordinary way' been prevented from asserting his

rights, or (3) if the plaintiff has timely asserted his rights mistakenly in the

wrong forum . . . ." Ibid.; see also Freeman v. State, 347 N.J. Super. 11, 31

(App. Div. 2002). Equitable tolling affords relief from "inflexible, harsh or

unfair application of a statute of limitations, but it requires the exercise of

reasonable insight and diligence by a person seeking its protection." Villalobos,

342 N.J. Super. at 52. However, "absent a showing of intentional inducement


3
  "Equitable tolling assumes the accrual of the action but intercepts and delays
the bar of the statute of limitations . . . ." Villalobos v. Fava, 342 N.J. Super.
38, 46 (App. Div. 2001).
                                                                            A-3628-18T3
                                       17
or trickery by a defendant, the doctrine of equitable tolling should be applied

sparingly and only in the rare situation where it is demanded by sound legal

principles as well as the interests of justice." Freeman, 347 N.J. Super. at 31.

      As noted, in his verified complaint, Harrell asserts only that "[i]n 2014,

the Innocence Project took on [p]laintiff's case and filed a motion to have DNA

testing done, which was not available when plaintiff was prosecuted."

(Emphasis added).      He further verified that after initially objecting, the

Monmouth Prosecutor consented to DNA testing on February 13, 2015, resulting

in the July 13, 2016 Bode Cellmarks Forensic report. In his merits brief,

however, Harrell claims, without appropriate citation to the record, that "[i]n

2002, when the law changed to permit DNA testing for incarcerated defendants

asserting innocence, Harrell reached out to the Innocence Project for assistance.

However, because the law at the time only applied to incarcerated defendants,

Harrell was turned away."4




4
  In support of that claim, Harrell's merits briefs improperly cite to statements
his counsel made at oral argument before the trial court. See Celino v. Gen.
Accident Ins., 211 N.J. Super. 538, 544 (App. Div. 1986) ("Facts intended to be
relied on which do not already appear of record and which are not judicially
noticeable are required to be submitted to the court by way of affidavit or
testimony."). Further, Harrell's verified complaint makes no mention of any
contact with the Innocence Project at any point prior to 2014.
                                                                          A-3628-18T3
                                       18
      Harrell does not assert in his verified complaint that he took any action

during the period between August 25, 1997, when the MIA was enacted and

which triggered the two-year statutory period, and when it lapsed two years later

on August 25, 1999. Harrell did not maintain that he filed any request for DNA

evidence, either through an action under the MIA or otherwise. Thus, Harrell's

verified statement that "DNA testing . . . was not available when [he] was

prosecuted" does not address the critical analytical period.

      We also observe that contrary to his unsupported assertions, Harrell was

not precluded from requesting DNA evidence prior to 2002. Indeed, in State v.

Cann, the court held that a convicted individual in a post-conviction relief

application had the right to request DNA testing, stating that "if a defendant

desires a DNA sample for testing purposes . . . he must make an application to

the trial court." 342 N.J. Super. 93, 103 (App. Div. 2001); see also State v.

Hogue, 175 N.J. 578, 582 (2003). Relying on Rule 1:1-2, we noted that though

"applications of this type [were] not envisioned by [Rule] 3:20-1, which

authorizes a trial judge, on defendant's motion, to grant defendant a new trial 'if

required in the interest of justice' . . . [t]he absence of a rule authorizing the

filing of a motion does not deprive a litigant of the right to make an application

to the court." Ibid.


                                                                           A-3628-18T3
                                       19
      The fact remains that on this record, Harrell took no action during this

operative period and his claim that DNA evidence was unavailable is therefore

not only unsupported but speculative.5 We therefore are unable to conclude that

he was "in some extraordinary way" prevented from asserting his rights. F.H.U.,

427 N.J. Super. at 379; see also Freeman, 347 N.J. Super. at 31.6

      Even were we to accept Harrell's argument that the 2002 version of

N.J.S.A. 2A:84A-32A acted as a bar for him to obtain DNA evidence until its

2016 amendment, his lack of proven action from between 1997 and 1999, and

from 1999 to 2002, establishes that he failed to exercise the requisite "reasonable

insight and diligence" necessary to obtain the protection of the equitable tolling

doctrine. Villalobos, 342 N.J. Super. at 52.


5
   In this regard, we part company with the trial court's obiter dictum that u ntil
the prosecutor vacated Harrell's conviction, any suit under the MIA would have
resulted in an immediate Rule 4:62 motion likely followed by a frivolous
litigation letter. First, no such application was ever filed and therefore any
prognostication regarding the outcome is entirely speculative. Second, we note
that the MIA required that Harrell clearly and convincingly establish that: 1) he
was convicted, 2) sentenced and served all or a part of his sentence, 3) he "did
not commit the crime for which he was convicted," and 4) he "did not commit
or suborn perjury, fabricate evidence" or bring about his conviction by "his own
conduct." As noted, infra, Harrell actually possessed forensic evidence that
established his innocence of the sexual assault conviction two years prior to
filing suit.
6
  Harrell does not allege that he was "actively misled" or that he "timely asserted
his rights mistakenly in the wrong forum." Ibid.
                                                                           A-3628-18T3
                                       20
      Moreover, even when Harrell received the Bode Cellmarks Forensic

report in July 2016, he waited over two years before filing his August 1, 2018

complaint. We acknowledge that Harrell filed his complaint within two years

of the court's August 3, 2016 decision to vacate his sentence, but as detailed,

supra, the MIA is not triggered when a sentence is vacated. The unexplained

over-two-year delay from receipt of the Bode Cellmarks report, and near two-

year delay in filing his complaint after his conviction was vacated, provides

further support for our conclusion that it would be inappropriate to apply the

equitable tolling doctrine here.7

                                       V.

      In light of our decision, we need not address the merits of the Department's

alternative argument Harrell's Megan's Law and burglary convictions affect his

recoverability under the MIA, nor Harrell's assertion that the Department waived

those claims by failing to raise them in the trial court. See Nieder v. Royal

Indem. Ins. Co., 62 N.J. 229, 234 (1973).

      Affirmed.



7
  In any event, the Legislature has the authority to adopt statutory amendments
to provide relief to persons such as Harrell, and to evaluate the fiscal
consequences of doing so. We are aware such bills have been proposed but not
enacted.
                                                                          A-3628-18T3
                                      21
