STATE OF NEW JERSEY VS. DONOVAN LITTLE (14-03-0168, PASSAIC COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-0193-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DONOVAN LITTLE, a/k/a
TERRELL GREEN,
DONOVAN TERRELL
BROOKLYN, DONOVAN
DAVIS, and VICTOR LITTLE,
Defendant-Appellant.
___________________________
Submitted September 27, 2021 – Decided October 6, 2021
Before Judges Mayer and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 14-03-0168.
Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel, on
the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Ali Y. Ozbek, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Donovan Little appeals from a July 18, 2019 order denying his
petition for post-conviction relief (PCR) without an evidentiary hearing. We
affirm for the reasons stated by Judge Sohail Mohammed in his thorough and
well-reasoned written decision.
We incorporate the facts from our opinion affirming defendant's
conviction and sentence on direct appeal. State v. Little, No. A-2020-15 (App.
Div. January 10, 2018). We briefly recount the salient facts.
A police officer saw a dangling, unsecured front license plate on a car
driven by defendant, a violation of N.J.S.A. 39:3-33. As a result of the motor
vehicle violation, the officer stopped the car and requested defendant's driving
credentials. Defendant refused to produce his credentials.
Other officers arrived at the scene and told defendant his continued refusal
to produce the credentials would result in defendant's arrest. Defendant again
declined to provide the documents. The officers then told defendant he was
under arrest and attempted to open the car door. Because defendant refused to
open the locked door, a police officer broke a window and attempted to remove
defendant. Defendant continued to resist the officers' efforts to remove him
from the car.
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Defendant then started the car and accelerated. As a result, he dragged
the officers for several feet. One officer had his arm in the car when defendant
drove off and suffered a significant laceration to his hand, requiring several
stitches. Another officer was struck on the hand by the car's side mirror, causing
injury.
When defendant sped off, the police followed in marked patrol cars.
During the chase, defendant's car struck two police cars. After flipping his car
during the chase, defendant attempted to flee on foot. He was taken down by a
police canine and then arrested.
On September 27, 2018, defendant filed a timely PCR petition. In his
PCR petition, defendant raised the following arguments in support of his
ineffective assistance of counsel claim: failure to file a motion challenging the
traffic stop; failure to challenge the constitutionality of N.J.S.A. 39:3-33; failure
to invoke the defense of necessity; failure to move to dismiss the aggravated
assault charge; and cumulative error.
On June 19, 2019, Judge Mohammed heard counsels' arguments on the
PCR petition. In a July 18, 2019 order and attached written decision, the judge
denied defendant's motion for post-conviction relief.
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On the failure to file a motion challenging the traffic stop, the judge found
defense counsel exercised proper trial strategy and effectively cross-examined
the testifying officers in an effort to demonstrate an ulterior motive for the motor
vehicle stop. In addition, the judge held defendant failed to show that but for
his attorney's "error" the outcome of the trial would have been different. The
judge also found defendant would not have prevailed in a motion to suppress the
traffic stop because, based on the videotape evidence, his license plate was
clearly dangling in violation of N.J.S.A. 39:3-33.
Similarly, on the failure to challenge the term "horizontal" in N.J.S.A.
39:3-33 as constitutionally vague, Judge Mohammed concluded such a
challenge would have been without merit based on the clear language of the
statute. The judge explained the word "dangle" means a license plate that is not
horizontal and swings freely.
On the invocation of the necessity defense, the judge held defendant
would not have prevailed because he was unable to show an emergency situation
without any fault on his part. Defendant created the emergency situation by not
adhering to the police officers' instructions to exit the car. The judge further
concluded there was no evidence the officers had guns drawn to lead defendant
to believe he faced imminent harm.
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On the failure to dismiss the aggravated assault charge, defendant argued
there was no evidence he used the car as a weapon. The judge concluded the
argument was moot because the jury did not convict defendant on the aggravated
assault charge.
On appeal, defendant raises the following arguments:
POINT I
THE PCR COURT ERRED IN DENYING
DEFENDANT AN EVIDENTIARY HEARING
BECAUSE THE TESTIMONY IS NEEDED
REGARDING TRIAL COUNSEL'S FAILURE TO
CHALLENGE THE INITIAL POLICE STOP AS
UNLAWFUL.
POINT II
THIS MATTER SHOULD BE REMANDED TO THE
PCR COURT FOR AN EVIDENTIARY HEARING
AS TRIAL COUNSEL MUST EXPLAIN WHY HE
FAILED TO CHALLENGE THE
CONSTITUTIONALITY OF N.J.S.A. 39:3-33.
POINT III
THIS MATTER SHOULD BE REMANDED TO THE
PCR COURT FOR FURTHER CONSIDERATION
AND DETERMINATION OF ALL ISSUES RAISED
IN THE PCR PETITION (Not Raised Below).
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We reject these arguments for the cogent reasons set forth by Judge
Mohammed in his July 18, 2019 written decision. We add only the following
comments.
A statute is unconstitutionally vague if it "forbids or requires the doing of
an act in terms so vague that men of common intelligence must necessarily guess
at its meaning and differ as to its application." Karins v. Atlantic City, 152 N.J.
532, 541 (1998) (quoting Connally v. General Constr. Co., 269 U.S. 385, 391
(1926)). When interpreting the language of a statute, courts should give words
their "generally accepted meaning[s]" and construe words and phrases in
appropriate contexts. N.J.S.A. 1:1-1. If the text of the statute is clear, then the
"court's task is complete." State v. Carter, 247 N.J. 488, 513 (2021) (quoting
State v. Lopez-Carrera, 245 N.J. 596, 613 (2021)).
N.J.S.A. 39:3-33 states a license plate must be displayed "in a horizontal
position, and in such a way as not to swing." Construing the terms "horizontal"
and "not to swing" in the context of a license plates means the plate must be
attached to the car such that it is straight in relation to the horizon and affixed
to the car as to not move. As Judge Mohammed correctly concluded, a "license
plate cannot be both non-horizontal/leaning and be horizontal at the same point
in time." These terms, especially when applied to affixing a license plate to a
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car, are not ambiguous or vague. Since the language in the statute is clear, trial
counsel was not ineffective in failing to challenge N.J.S.A. 39:33-3 as
constitutionally vague.
Having reviewed the record, defendant was not entitled to an evidentiary
hearing because he failed to present a prima facie case of ineffective assistance
of counsel under the Strickland/Fritz1 analysis. See State v. Preciose, 129 N.J.
451, 462-63 (1992). We conclude Judge Mohammed thoroughly addressed
defendant's contentions and affirm for the reasons stated in his well-reasoned
written decision of July 18, 2019.
Affirmed.
1
Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J.
42, 58 (1987).
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