On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 04-06-0676.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2009
Before Judges Lyons and J. N. Harris.
Defendant, Correl Glenn, appeals from a denial of his petition for post-conviction relief (PCR). We affirm.
On the evening of March 20, 2004, at approximately 11:30 p.m., Officer Joseph Lopez of the Bridgeton Police Department, observed a small, black motor vehicle, operated by defendant, traveling at a high rate of speed.
Officer Lopez followed the vehicle and observed the driver commit a series of traffic violations. As Officer Lopez narrowed the gap between his vehicle and the one he was following, Officer Lopez activated his overhead lights and siren to stop the vehicle. Upon the activation of the lights and siren, defendant's vehicle sped off. Officer Lopez chased defendant through the residential streets of Bridgeton. Defendant's vehicle went through five stop signs during the pursuit, and Officer Lopez observed that the vehicle's brake lights never lit up at any of the intersections that had stop signs.
Defendant eventually pulled his vehicle over to the side of the road and attempted to flee on foot. After a brief struggle, Officer Lopez was able to apprehend and arrest defendant.
Before a grand jury, on June 23, 2004, the State presented Officer Lopez's testimony regarding the aforementioned facts of this case. After Officer Lopez's testimony, the State apprised the grand jury of the four crimes for which it might return an indictment. The State explained to the grand jury:
Eluding is a crime of the third-degree, but there is a permissive inference that if there is a risk of severe bodily injury or death to other people for - - where there is a violation of Title 39.4 [sic] offense. In this case, I believe that the officer testified that the defendant ran at least two stops [sic] signs without even slowing down. That provides a permissive inference and would allow a finding of second-degree, rather than third-degree, if you so choose. Defendant was subsequently charged in Indictment No. 04-06-0676 with second-degree eluding, N.J.S.A. 2C:29-2b (count one); third-degree aggravated assault, N.J.S.A. 2C:12-1b(5) (count two); third-degree resisting arrest, N.J.S.A. 2C:29-2a (count three); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a (count four). Notably, the language of count one, as returned by the grand jury, read:
(Eluding - Second Degree)
Correl Glenn... did knowingly and unlawfully flee in a motor vehicle or did knowingly and unlawfully attempt to elude a law enforcement officer to wit: Ptlm. J. Lopez, of the Bridgeton Police Department, while operating a motor vehicle, after having received a signal from said officer to bring the vehicle to a full stop, contrary to the provisions of N.J.S. [sic] 2C:29-2b, and against the peace of this State, the government and dignity of the same.
Count One, then, charged defendant with second-degree eluding and stated the applicable New Jersey Criminal Code*fn1 provision for the crime, but the elements set out in the indictment included only those necessary for a third-degree eluding charge. The indictment omitted the element which raised the offense from third-degree eluding to second-degree eluding: "the flight or attempt to elude creates a risk of death or injury to any person." N.J.S.A. 2C:29-2b.
Defendant's counsel requested the grand jury minutes on October 20, 2004.
At a pre-trial conference, defense counsel requested defendant's traffic tickets as part of discovery. Counsel explained that the tickets were important because "the State has charged this as a second-degree eluding. And the way you bump-up a third-degree eluding to a second-degree eluding is to allege that some kind of motor vehicle offenses have occurred."
The matter proceeded to a jury trial on March, 14, 15, and 16, 2005. After the State's case, defendant moved to dismiss the indictment on the basis that the State failed to prove its case. This was denied. ...