On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-06-2162.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn and Gilroy.
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.*fn1 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 ...