STATE OF NEW JERSEY v. TYRELL L. HICKS

NOT FOR PUBLICATION WITHOUT THE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-2669-15T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

TYRELL L. HICKS, a/k/a JAMIR
STYLES,

     Defendant-Appellant.
__________________________________

              Submitted July 25, 2017 – Decided December 22, 2017

              Before Judges Ostrer and Leone.

              On appeal from Superior Court of New Jersey,
              Law Division, Hunterdon County, Indictment No.
              14-09-0278.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Stephen P. Hunter, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Anthony P. Kearns, III, Hunterdon County
              Prosecutor, attorney for respondent (Jeffrey
              L. Weinstein, Assistant Prosecutor, on the
              brief).

PER CURIAM
     After the trial court denied his motion to dismiss a single-

count   indictment    charging    second-degree     eluding     of    a    law

enforcement officer, 
N.J.S.A. 2C:29-2(b), defendant Tyrell L.

Hicks entered a conditional guilty plea to an amended charge of

third-degree eluding, and was sentenced to a flat three-year prison

term.   In his allocution, defendant admitted he ignored a police

officer's signal to stop over the course of a couple of miles as

he reached speeds of ninety-five miles an hour, and he ultimately

came to rest on the median of a State highway.

     Defendant now appeals, asserting:

           THE TRIAL COURT ERRED IN FAILING TO DISMISS
           THE INDICTMENT.   U.S. Const. Amend V, XIV;
           N.J. Const. Art. I, § 8.

We affirm.

     Defendant contends the testifying officer usurped the grand

jury's function to ascertain probable cause by opining about the

danger defendant posed.        He argues that the State should have

presented the motor vehicle recording (MVR) of the police pursuit

instead.     The assistant prosecutor asked the officer whether

defendant "created a risk of possible serious injury or death" to

motorists,   and   "put   in   jeopardy"   the   lives   of   the    pursuing

officers. See 
N.J.S.A. 2C:29-2(b) (stating that a person is guilty

of second-degree eluding a law enforcement officer if the attempt



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to elude "creates a risk of death or injury to any person").              The

officer answered affirmatively.

     In addition, the officer recounted in detail his pursuit of

defendant.   He   testified    that       defendant   swerved   between   and

straddled lanes, and tossed items out of the car, as he sped away.

To follow defendant, the officer had to match his high speeds, and

go in and out of lanes.   One or two members of the motoring public

were on the road at the time.

     As an indictment is presumed valid, a trial court may dismiss

an indictment only if it is "manifestly deficient or palpably

defective," and only with the exercise of discretion upon the

"clearest and plainest ground."            State v. Nicholson, 
451 N.J.

Super. 534, 541 (App. Div. 2017) (quoting State v. Feliciano, 
224 N.J. 351, 380 (2016)).        We will not disturb a trial court's

decision on a motion to dismiss absent a clear abuse of discretion.

State v. Hogan, 
144 N.J. 216, 229 (1996).

     Applying that deferential standard of review, we affirm the

trial court's order, substantially for the reasons set forth in

Judge Angela F. Borkowski's cogent written opinion.             We add that

the officer's opinion about the safety threat defendant posed did

not "clearly infringe[]" upon the grand jury's decision-making

authority so as to require dismissal, see State v. Schamberg, 
146 N.J. Super. 559, 564 (App. Div. 1977), as there was ample evidence,

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based upon the officer's description of events, from which the

grand jury could conclude there was probable cause to charge

second-degree eluding.         Also, the State was not obliged to present

the MVR, as it had already presented sufficient evidence to support

the indictment.       See State v. N.J. Trade Waste Ass'n, 
96 N.J. 8,

27 (1984) (stating that the State need present to the grand jury

only evidence sufficient to support a prima facie case).

     Defendant also contends the State failed to properly instruct

the jury, because the prosecutor did not review with the grand

jury the elements of the offense during its consideration of

defendant's case.       However, the prosecutor read the indictment,

which recited the elements; she confirmed the grand jury did not

require a reading of the statute; and, earlier in the grand jury's

term,   the   grand     jury    received   an   instruction   on   eluding.

Therefore, we discern no merit to this argument.              See State v.

Triestman, 
416 N.J. Super. 195, 205 (App. Div. 2010).

     Affirmed.




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