STATE OF NEW JERSEY v. SHYREE LITTLE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5196-07T45196-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

SHYREE LITTLE,

Defendant-Appellant.

__________________________________

 

Submitted: October 7, 2009 - Decided:

Before Judges Cuff and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-11-3360.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Maryann K. Lynch, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Shyree Little appeals from the denial of his petition for post-conviction relief (PCR). He is serving an aggregate term of twenty years imprisonment with a thirteen and one-half year period of parole ineligibility following his 2001 conviction of conspiracy, robbery, aggravated assault, possession of a weapon for an unlawful purpose, carjacking, unlawful possession of a weapon, disarming a law enforcement officer, and resisting arrest. We affirm.

This court affirmed defendant's conviction and sentence. State v. Little, A-5498-01 (App. Div. June 24, 2004). The Supreme Court denied certification. 182 N.J. 148 (2004).

In his February 26, 2007 petition for PCR, defendant asserted that his trial attorney provided ineffective assistance of counsel because he did not adequately prepare to mount an effective defense. Specifically, defendant alleged that trial counsel did not adequately investigate the facts and circumstances of the events at the Irvington Motor Lodge and did not interview witnesses sufficiently. Defendant also alleged that his trial attorney did not zealously object to a trial in absentia. Defendant argued that he should not have been charged with and convicted of carjacking, the verdict was not supported by the evidence, he should have been provided a Wade hearing, and his trial attorney failed to advance appropriate mitigating factors and to rebut aggravating factors cited at sentencing. Finally, defendant argued that appellate counsel was ineffective for not raising pertinent issues on appeal.

In a comprehensive written opinion, Judge Patricia Costello considered the various arguments advanced by defendant and dismissed the petition. As to the claim that defense counsel was unprepared, Judge Costello noted that defendant did not support his assertions with certifications or affidavits, and the trial record demonstrated that defense counsel was very familiar with the area and the chase route and was equipped with charts and diagrams. Other than asserting a failure to interview witnesses, defendant did not identify witnesses or advise the court of the evidence they would have contributed to the trial record.

Judge Costello also observed that the trial record demonstrates that defense counsel highlighted many inconsistencies in the testimony of those involved in the encounter in the motel parking lot. She noted that it is the role of the jury to resolve inconsistencies and a conviction is not necessarily indicative of a failed cross-examination.

Judge Costello also found that the trial record revealed that defendant had received his Hudson warnings and had signed the Hudson notice. The record also reflected attempts to locate defendant to give him notice of each adjourned date. The judge also noted that this court on direct appeal held that the record contained "more than sufficient" evidence to support the carjacking charge.

As to the claim that appellate counsel was ineffective, Judge Costello noted that several of the issues submitted by defendant were raised on appeal and that others were more appropriate for PCR. As to the Wade issue, there were no out-of-court identifications; therefore, there was no reason for such a hearing.

Finally, Judge Costello found that the trial record reveals that defense counsel argued several mitigating factors. The trial judge specifically rejected the proffered factors.

On appeal, defendant raises the following arguments:

POINT I -THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE THE DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND APPELLATE COUNSEL.

(A)

TRIAL COUNSEL'S INADEQUATE PRETRIAL INVESTIGATION WHICH RESULTED IN A FAILED CROSS-EXAMINATION OF THE STATE'S WITNESSES; TRIAL COUNSEL'S FAILURE TO FILE A PRETRIAL MOTION FOR A WADE IDENTIFICATION HEARING; TRIAL COUNSEL'S FAILURE TO OBJECT TO THE IN ABSENTIA TRIAL AS A VIOLATION OF THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO TESTIFY; AND TRIAL COUNSEL'S FAILURE TO ARGUE MITIGATING FACTORS AT SENTENCING SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL, AND APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THESE ISSUES ON APPEAL.

(1)

THE DEFENDANT SATISFIED THE FIRST PRONG OF THE STRICKLAND/FRITZ TEST IN HIS PETITION FOR POST-CONVICTION RELIEF.

(2)

THE DEFENDANT SATISFIED THE SECOND PRONG OF THE STRICKLAND/FRITZ TEST IN HIS PETITION FOR POST-CONVICTION RELIEF.

POINT II -THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10, OF THE NEW JERSEY CONSTITUTION.

POINT III-DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN PCR COUNSEL'S BRIEF AND IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF.

We affirm the December 10, 2007 order denying defendant's petition for PCR substantially for the reasons expressed in Judge Costello's December 19, 2007 written opinion.

Affirmed.

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

State v. Hudson, 119 N.J. 165 (1990).

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A-5196-07T4

October 20, 2009