STATE OF NEW JERSEY v. GEORGE CARTER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5191-05T45191-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GEORGE CARTER,

Defendant-Appellant.

______________________________

 

Submitted May 15, 2007 - Decided May 29, 2007

Before Judges Coburn and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-06-2162.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from that part of the March 16, 2006, order of the Law Division denying his petition for post-conviction relief (PCR), seeking to correct a purported illegal sentence imposed on his conviction of Count Three of the indictment. We affirm.

On June 11, 1999, defendant was charged under Essex County Indictment No. 99-06-2162 with second-degree eluding police, N.J.S.A. 2C:29-2b (Count One); fourth-degree hindering apprehension, N.J.S.A. 2C:29-3a(2) (Count Two); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Count Three); three counts of second-degree aggravated assault by attempting to elude the police, N.J.S.A. 2C:12-1b(6) (Counts Four, Five, and Six); and third-degree criminal mischief, N.J.S.A. 2C:17-3 (Count Seven).

On January 3, 2000, defendant entered a guilty plea to Counts One, Three, and Four. In exchange, the State agreed to dismiss the remaining counts of the indictment and to recommend eight years' imprisonment, subject to the 85% parole disqualifier of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In addition to signing the plea agreement, defendant also signed a supplemental NERA plea form acknowledging that he understood that he would be required to serve three years of parole supervision upon release.

On July 21, 2000, defendant was sentenced on Counts Three and Four to concurrent terms of seven years' imprisonment, subject to the NERA disqualifier. A concurrent term of seven years' imprisonment was imposed on Count One. The remaining counts were dismissed pursuant to the plea agreement.

On March 10, 2003, defendant filed a pro se petition for PCR to correct what he believed were illegal sentences on Counts Three and Four, contending that the sentences should not have been subject to the NERA. The petition was denied by order of December 10, 2003. On appeal, we granted defendant's motion for summary disposition; reversed the denial of the PCR petition; and remanded the matter for the trial court to assign counsel and schedule a hearing on the petition. On remand, Judge Vichness determined that the sentence imposed on Count Four was not subject to the NERA and removed the 85% parole disqualifier from the sentence imposed on that count. However, the judge determined that the sentence imposed on Count Three remained subject to the NERA and denied defendant's petition for post-conviction relief, leaving undisturbed the 85% parole disqualifier and the three-year term of parole supervision imposed on Count Three. In reaching his decision, the judge stated:

At this point, the point of [Lafalaise's] testimony, which is the last testimony we have, she was unable to turn her head to the [right] at all. She made it abundantly clear the only way she could look to the [right] was to simply turn her body to the [right]. That is, I find a protracted loss of a function of the ability to look to the side, and therefore, constitutes serious bodily injury.

Defendant argues that the trial judge erred, determining that his conviction of second-degree aggravated assault on Lafalaise (Count Three) required the imposition of the mandatory NERA parole disqualifier. Defendant contends that the sentence imposed was illegal because Lafalaise's neck injury did not amount to "serious bodily injury" under N.J.S.A. 2C:11-1b, and therefore, he did not commit a "violent crime" as defined in the NERA statute, N.J.S.A. 2C:43-7.2d. The State counters that the injury, i.e., the inability to turn her head to the right three months post-accident, constitutes a "serious bodily injury" under the aggravated assault statute, and as such, the defendant did commit a "violent crime" as defined under the NERA statute. We agree.

On January 11, 1999, defendant was driving a motor vehicle in Newark when the police attempted to pull him over. In an attempt to elude the police, defendant drove through two red lights and collided with a motor vehicle occupied by Suzette Lafalaise and her minor daughter. Both occupants were injured in the accident. Following the accident, the child was transported to Beth Israel Hospital because of complaints of pain in one of her knees. Although the child's ability to walk was impaired for approximately three weeks, she did not suffer a permanent injury.

Suzette Lafalaise was also transported to the hospital. Lafalaise appeared before the Grand Jury on April 27, 1999. As to her injuries, she testified as follows. Following a magnetic resonance imaging examination (MRI) of the cervical spine, the doctor informed her that she had a "C-1 and C-2" problem. Because of the injury, Lafalaise was placed into the hospital's intensive care unit (ICU) for seven days. On release from the ICU, Lafalaise remained in the hospital for another three days before being discharged. Twelve days after discharge, Lafalaise awoke with discomfort in her neck and difficulty in breathing. After talking to her physician, Lafalaise was admitted to St. Barnabas Hospital in Livingston, where she was examined and underwent a second MRI that disclosed the "same problem" in her cervical spine at the C1 - C2 levels. Following emergency room treatment, Lafalaise was placed in the ICU for three days and then remained in the hospital on a regular floor for seven days after release from the ICU. As of the date Lafalaise appeared before the Grand Jury, she continued to have difficulty in turning her neck to the right without having to turn her whole body. As a result, she remained under the care of her treating physician and was scheduled to undergo another MRI on May 26, 1999.

Rule 3:22-2(c) provides that a PCR petition is cognizable when based upon "[i]mposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law." At the time defendant committed the aggravated assault, the operative statutory language of NERA provided:

A court imposing a sentence of incarceration for a crime of the first or second-degree shall fix a minimum term of 85% of the sentence during which the defendant shall not be eligible for parole if the crime is a violent crime as defined in subsection d. of this section.

[N.J.S.A. 2C:43-7.2a].

Subsection d of the same statute provided in pertinent part: "For the purposes of this section, 'violent crime' means any crime in which the actor causes death, causes serious bodily injury as defined in subsection b of N.J.S.A. 2C:11-1, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:43-7.2d. "Serious bodily injury" is defined in N.J.S.A. 2C:11-1b as meaning a "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Accordingly, to prove a "serious bodily injury," the State only has to prove that the victim's injury falls within one of the alternate categories of injuries set forth in N.J.S.A. 2C:11-1b. One category is an injury which causes "protracted loss or impairment of the function of any bodily member or organ." N.J.S.A. 2C:11-1b. "Protract" is defined as meaning "to draw out; lengthen in duration; prolong." Webster's New World College Dictionary, 1082 (3 ed. 1996). "Impair" is defined as meaning "to make worse, less, [or] weaker." Id. at 675.

Here, Lafalaise was injured in the automobile accident, while defendant was attempting to elude the police on January 11, 1999. An MRI disclosed injury to her cervical spine at the C1 - C2 levels. Believing that any movement might cause paralysis, Lafalaise was admitted into the ICU where she remained for seven days, and after release from ICU, she was required to remain in the hospital on a regular floor for another three days. Twelve days after discharge, Lafalaise required emergency room treatment because of discomfort in the neck and difficulty in breathing. She was re-admitted into St. Barnabas Hospital where she was examined, underwent a second MRI that disclosed the same problem in her cervical spine, requiring her to be placed into ICU for three days and then remain in the hospital on a regular floor for another seven days after release from the ICU. Three months post-accident, Lafalaise remained under the care of her treating physician and had difficulty turning her neck to the right without turning her whole body. We are satisfied that the evidence was sufficient for the trial judge to have determined that Lafalaise's injury constituted a "protracted . . . impairment of the function of any bodily member or organ," here her cervical spine. N.J.S.A. 2C:11-1b.

Defendant argues that we should be guided by the Court's decision in State v. Sewell, 127 N.J. 133 (1992), where the Court determined that "bodily injury" - not "serious bodily injury" - included such injuries as a sore back, leg, hip, and chest. The case is distinguishable. In Sewell, as defendant attempted to flea after stealing a bucket of coins from a patron at a casino, defendant injured three elderly women. The first woman suffered a leg and back injury that was treated with a pain reliever and ice pack. Her blood pressure also remained elevated for one day. The second woman suffered a sore hip that was also treated with a pain reliever and ice pack. The third woman suffered a sore chest for about one week, although she was not bruised. Id. at 136. In interpreting whether the injuries fell within the ambit of the robbery statute, the Court stated: "Although no serious injuries resulted from those collisions, the evidence would support a finding that all three women suffered 'bodily injury' as defined in N.J.S.A. 2C:11-1a ('physical pain, illness, or any impairment of physical condition')". Id. at 135. The Court was defining the term "bodily injury" under a different section of the statute than applicable here. Moreover, Lafalaise's inability to turn her neck without having to turn her body three months post-accident is more serious than the injuries suffered by the three women in Sewell.

 
Affirmed.

The NERA statute was amended effective June 29, 2001. Accordingly, the former NERA statute described infra governs defendant's conviction and sentence.

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A-5191-05T4

May 29, 2007