STATE OF NEW JERSEY v. QADREE CHRISTIAN

NOT FOR PUBLICATION WITHOUT THE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-1698-15T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

QADREE CHRISTIAN a/k/a QUSAIM
RICHARDSON, QUADREE RICHARDSON,

        Defendant-Appellant.

__________________________________

              Submitted March 15, 2017 – Decided January 22, 2018

              Before Judges Fuentes and Gooden Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No. 14-
              03-0794.

              Hunt, Hamlin & Ridley, attorneys for appellant
              (Raymond L. Hamlin, of counsel and on the
              brief).

              Carolyn A. Murray, Acting Essex County
              Prosecutor, attorney for respondent (Frank J.
              Ducoat, Special Deputy Attorney General/
              Acting Assistant Prosecutor, of counsel and
              on the brief).

        The opinion of the court was delivered by

FUENTES, P.J.A.D.
      Defendant Qadree Christian was indicted by an Essex County

grand jury and charged with second degree eluding, 
N.J.S.A. 2C:29-

2(b), and fourth degree resisting arrest, 
N.J.S.A. 2C:29-2(a)(1),

arising from an incident that occurred on December 12, 2013.              On

that same date, defendant was charged with a number of related

motor vehicle violations under Title 39.       On April 20, 2015, after

the   trial   court   denied   defendant's    motion     to   dismiss     the

indictment,   defendant   negotiated   an    agreement   with   the     State

through which he pled guilty to second degree eluding.           Defendant

expressly reserved his right to appeal the court's decision to

dismiss the indictment.
1 On January 15, 2016, the court sentenced

defendant to a term of three years, consistent with the plea

agreement.

      In this appeal, defendant raises the following arguments

concerning the trial court's decision to deny his motion to dismiss

the indictment.

          POINT ONE

          THE COURT COMMITTED [REVERSIBLE] ERROR IN ITS
          DETERMINATION OF WHEN THE ALLEGED ELUDING
          INITIALLY OCCURRED.




1
  The appellate record does not include the transcript of the plea
hearing describing the terms of the plea agreement. However, the
State does not challenge defendant's right to seek appellate review
of this interlocutory decision.

                                   2                               A-1698-15T1
            POINT TWO

            THE STATE FAILED TO ESTABLISH A RISK OF DEATH
            OR INJUURY TO ANY PERSON AS REQUIRED FOR THE
            OFFENSE OF SECOND DEGREE ELUDING.

                 A. CONDUCT OCCURRING [SIC] PRIOR TO
                 ELUDING OR ATTEMPT TO ELUDE CANNOT
                 SUPPORT A SECOND DEGREE ELUDING
                 CHARGE

                 B. DEFENDANT'S CONSTITUTIONAL RIGHT
                 TO A GRAND JURY WAS VIOLATED.

     We reject these arguments and affirm.         The transcript of the

grand jury proceedings shows the State presented the testimony of

Newark Police Officer Orlando Rivera.             He testified that on

December 12, 2013, at approximately 11:00 p.m., while patrolling

the streets in Newark in a marked police car, he observed "a black

Chevy Impala with tinted windows driving erratically at 15th Avenue

and South Street."       Rivera activated the police car's emergency

overhead lights and siren.       According to Rivera, the driver of the

Chevy failed to heed his command to pull over and drove away at a

high rate of speed.

     Rivera radioed the local precinct and requested backup police

units to respond.    Rivera testified that "the dispatcher" told him

"to stay off the air."       A Detective Sergeant then directed the

dispatcher "to monitor the pursuit."         In the meantime, the Chevy

continued   to   drive   away,   heading   into   East   Orange.    Rivera

identified defendant as the driver of the Chevy.              The pursuit

                                     3                             A-1698-15T1
eventually ended "at the ramp at [Route] 280 and Grove Street,"

when the occupants of the Chevy "bailed out."        Defendant was

apprehended after "a brief foot-pursuit."

     In addition to the two criminal charges reflected in the

indictment, the arresting officer charged defendant with having

tinted windows, 
N.J.S.A. 39:3-74, failure to follow a police

officer's direction, 
N.J.S.A. 39:4-57, failure to produce proof

of insurance and proof of vehicle registration, 
N.J.S.A. 39:3-29,

driving while suspended, 
N.J.S.A. 39:3-40, and failure to obey the

instructions of any official traffic control device, 
N.J.S.A.

39:4-81.

     Defendant moved to dismiss the indictment.    At oral argument

before the motion judge, defense counsel framed his legal position

as follows:

           The issue is not whether or not there was
           sufficient information to support a finding
           per se. The issue is whether or not the State
           presented enough information to support a
           second degree charge of eluding.

As he does in his brief filed in this appeal, defense counsel

argued to the motion judge that the crime of second degree eluding

requires the State to establish that defendant, while driving a

car, "knowingly flees or attempts to elude any police or law

enforcement" in a manner that "creates a risk of death or injury

to any person."    
N.J.S.A. 2C:29-2(b).     Counsel maintained that

                                 4                          A-1698-15T1
Officer Rivera's testimony did not describe conduct that satisfied

these statutory requirements.

     The prosecutor appearing for the State before the motion

judge decided not to offer any oral argument, opting instead "to

rely on its written positions."        Despite this proclamation, the

prosecutor noted that, at this phase of the criminal prosecution

process, the State was only required to establish probable cause.

     The motion judge began his oral analysis by noting that to

withstand a legal challenge to an indictment, the State must

establish a prima facie case that a crime has been committed and

that defendant committed it.      State v. Hogan, 
144 N.J. 216, 227

(1996).    The judge then reviewed the elements of the crime of

second degree eluding under 
N.J.S.A. 2C:29-2(b), and noted that

the grand jury may draw "a permissive inference that the flight

or attempt to elude creates a risk of death or injury to any person

if the person's conduct involves a violation of chapter 4 of Title

39[.]"    (Emphasis added).

     Against   this   legal   backdrop,   the   motion   judge   made   the

following findings:

           Here[,] Detective Rivera testified at [the]
           Grand Jury hearing that upon observing the
           defendant driving erratically that Detective
           Rivera activated his emergency lights and
           audible device and the defendant failed to
           heed his lights and sirens[.] Additionally,
           the detective testified that the defendant

                                   5                               A-1698-15T1
           sped off at a high rate of speed and did not
           stop after officers initiated a motor vehicle
           [stop.]    Based on this[,] the State has
           presented some evidence as to each of the
           three elements of the offense to establish a
           prima facie case for second degree eluding.

           Therefore, the defendant's motion is denied.

     "An indictment is presumed valid and should only be dismissed

if it is 'manifestly deficient or palpably defective.'"    State v.

Feliciano, 
224 N.J. 351, 380 (2016) (quoting Hogan, 
144 N.J. at
 229.).   We review the denial of a motion to dismiss an indictment

under an abuse of discretion standard.   State v. McCrary, 
97 N.J.
 132, 144 (1984).   Furthermore, this discretionary authority should

not be exercised "except for "the clearest and plainest ground[.]"

State v. N.J. Trade Waste Ass'n, 
96 N.J. 8, 18-19 (1984) (quoting

State v. Davidson, 
116 N.J.L. 325, 328 (Sup. Ct. 1936)).      Based

on the record we have described here, we discern no legally valid

grounds to disturb the motion court's decision.

     Affirmed.




                                 6                          A-1698-15T1