The People, Respondent,v.Pettis Hardy, Appellant.

Brief

N.Y.October 14, 2015

APL-2014-00197 To be argued by: EUNICE C. LEE, ESQ. (Counsel requests 15 minutes) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- PETTIS HARDY, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT RICHARD M. GREENBERG, ESQ. Attorney for Defendant-Appellant By: EUNICE C. LEE, ESQ. Supervising Attorney OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, NY 10007 Tel.: (212) 402-4100 Fax: (212) 402-4199 November 4, 2014 i TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 POINT I WHERE THE EVIDENCE OF LARCENY AGAINST PETTIS HARDY WAS WHOLLY CIRCUMSTANTIAL, INCLUDING HIS ALLEGED STATEMENT THAT HE COULD OBTAIN THE STOLEN PROPERTY, THE TRIAL COURT ERRED IN DENYING MR. HARDY’S REQUEST FOR THE PATTERN CIRCUMSTANTIAL EVIDENCE INSTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 A. Where Mr. Hardy’s Alleged Statement Was Not Direct Evidence, the Case Against Him Was Wholly Circumstantial. . . . . . . . . . . . . 24 B. The Trial Court’s Purportedly “Similar” Circumstantial Evidence Instruction Was Confusing and Omitted Crucial Information Regarding Inferences Consistent with Innocence. . . . . . . . . . . . . . . 29 ii POINT II WHERE THE TRIAL WAS SHORT AND FACTUALLY STRAIGHTFORWARD, THE LENGTH OF JURY DELIBERATIONS EXCEEDED THE TIME THAT EVIDENCE WAS ELICITED FROM THE STAND, AND THE COURT NOTED THE FRUSTRATION OF THE JURORS WITH THE CONTINUED DELIBERATIONS, THE TRIAL COURT’S DECISION TO ISSUE TWO ALLEN CHARGES, RATHER THAN DECLARE A MISTRIAL, WAS COERCIVE AND DEPRIVED PETTIS HARDY OF A FAIR TRIAL . . . . . . . . . . . . . . . . . . 33 A. The Trial Court Erred in Giving an Allen Charge in Response to the Jury’s First Deadlock Note, Given the Nature of the Evidence and the Length and Diligence of the Jury’s Deliberations. . . . . . . . 35 B. The Court’s Decision to Deliver an Allen Charge in Response to the Jury’s Second Deadlock Note, Which Followed the Jurors’ Further Sincere Efforts to Reach a Verdict and Frustration at Continued Deliberations, Was Unduly Coercive. . . . . . . . . . . . . . . 39 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 iii TABLE OF AUTHORITIES CASES Allen v. United States, 164 U.S. 492 (1896) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Malave v. Smith, 559 F. Supp.2d 264 (E.D.N.Y 2008) . . . . . . . . . . . . . . . . . . . . 27 People v. Aponte, 2 N.Y.3d 304 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 People v. Baptiste, 72 N.Y.2d 356 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 41 People v. Barnes, 50 N.Y.2d 375 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 People v. Burke, 96 A.D.2d 971 (3d Dep’t 1983) . . . . . . . . . . . . . . . . . . . . . . . . 26 People v. Campbell, 203 A.D.2d 127 (1st Dep’t 1994) . . . . . . . . . . . . . . . . . 37, 40 People v. Carter, 97 A.D.3d 492 (1st Dep’t 2012) . . . . . . . . . . . . . . . . . . . . . 30, 32 People v. Cheeseborough, 158 A.D.2d 534 (2d Dep’t 1990) . . . . . . . . . . 36, 40, 41 People v. Daddona, 81 N.Y.2d 990 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 30 People v. Ford, 66 N.Y.2d 428 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 31, 32 People v. Hardy, 115 A.D.3d 511, 981 N.Y.S.2d 722 (1st Dep’t), lv. granted, 23 N.Y.3d 1037 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 People v. Hunter, 17 N.Y.3d 725 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 People v. Pagan, 45 N.Y.2d 725 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 People v. Reed, 230 A.D.2d 866 (2d Dep’t 1996) . . . . . . . . . . . . . . . . . . . . . . . . 40 People v. Sanchez, 61 N.Y.2d 1022 (1984) . . . . . . . . . . . . . . . . . . . . 24, 25, 30, 31 People v. Santiago, 22 N.Y.3d 990 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 iv People v. Sheldon, 136 A.D.2d 761 (3d Dep’t 1988) . . . . . . . . . . . . . . . . . . . . . . 40 People v. Silva, 69 N.Y.2d 858 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 People v. Spencer, 1 A.D.3d 709 (3d Dep’t 2003) . . . . . . . . . . . . . . . . . . . . . 29, 32 People v. Tsotselashvili, 135 A.D.2d 759 (2d Dep’t 1987) . . . . . . . . . . . . . . 26, 27 Plummer v. Rothwax, 63 N.Y.2d 243 (1984) . . . . . . . . . . . . . . . . . . . 34-37, 40, 42 CONSTITUTIONAL PROVISIONS N.Y. Const. art. I, § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 N.Y. Const. art. I, § 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 34 U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 U.S. Const. amend. VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 34 STATUTES N.Y. Penal Law § 155.25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 N.Y. Penal Law § 155.30(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 OTHER AUTHORITIES CJI2d [NY] Circumstantial Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 30 1 COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------x : THE PEOPLE OF THE STATE OF NEW YORK, : : Respondent, : : -against- : : PETTIS HARDY, : : Defendant-Appellant. : : ---------------------------------------------------------------------x PRELIMINARY STATEMENT By permission of the Honorable Jonathan Lippman, Chief Judge of the Court of Appeals, granted July 28, 2014, appeal is taken from an order of the Appellate Division, First Department, entered on March 13, 2014, see People v. Hardy, 115 A.D.3d 511, 981 N.Y.S.2d 722 (1st Dep’t), lv. granted, 23 N.Y.3d 1037 (2014). This order affirmed a judgment of conviction rendered on October 28, 2011, by the Supreme Court, New York County (Carruthers, J., at hearing; Allen, J., at trial and sentencing), convicting Pettis Hardy, after a jury trial, of four counts of grand larceny in the fourth degree, N.Y. Penal Law § 155.30(4), and one count of petit larceny, N.Y. Penal Law § 155.25, and sentencing him to concurrent 1Citations preceded by “T.” refer to the trial transcript; parallel citations to the Appendix will be preceded by “A.” 2 prison terms of two to four years for each grand larceny count and a concurrent prison term of one year for the petit larceny count. This Court has jurisdiction, pursuant to New York Criminal Procedure Law § 450.90, to entertain this appeal and review the two questions raised. As to the question raised in Point I, Mr. Hardy is asserting that his rights were violated by the trial court’s refusal to instruct the jury on circumstantial evidence, as requested by defense counsel. T. 153-54; A. 143-44.1 As to the question raised in Point II, Mr. Hardy is asserting that his rights were violated by the trial court’s refusal to grant the mistrial that was twice requested by defense counsel, at each of the instances when the jury submitted notes indicating that it was deadlocked in its deliberations. T. 213, 223; A. 204, 214. 3 QUESTIONS PRESENTED 1. Where the evidence of larceny against Pettis Hardy was wholly circumstantial, including his alleged statement that he could obtain the stolen property, did the trial court err in denying Mr. Hardy’s request for the full pattern circumstantial evidence instruction? 2. Where the trial was short and factually straightforward, the length of deliberations exceeded the time that evidence was elicited from the stand, and the court noted the frustration of the jurors with the continued deliberations, did the trial court err and risk a coerced verdict by issuing two Allen charges, rather than declaring a mistrial? 4 INTRODUCTION After spending the evening working security at a nightclub for an after- hours music video shoot, Pettis Hardy was accused of stealing the purse of a woman whose bag had gone missing that night. The prosecution’s case against Mr. Hardy for grand larceny and petit larceny was based on a limited amount of evidence that was neither factually complicated nor legally complex, containing two primary components. First, there was videotape surveillance footage from inside and outside the nightclub that evening, which showed Mr. Hardy, whose duties included moving people’s belongings away from restricted areas, holding, looking through, and moving the complainant’s purse but not leaving the club with it. Second, the prosecution presented the testimony of another security guard at the club who, after watching the videotape, later confronted Mr. Hardy about the theft of the purse, and claimed Mr. Hardy responded, “I don’t have it, but I can get it.” Most of the other evidence was not in dispute, and the jury’s task was essentially limited to an assessment of what inferences to make from the videotape and Mr. Hardy’s alleged statement. Given that no witness testified to seeing Mr. Hardy leave the club with the complainant’s purse and no surveillance video depicted it, the evidence against Mr. Hardy was wholly circumstantial. The prosecution contended, however, that 5 Mr. Hardy’s alleged statement about being able to obtain the purse constituted direct evidence. Despite the fact that statement was in no way an admission to actually stealing the purse, and thus not direct evidence, the trial court deemed the case not wholly circumstantial, and erroneously denied defense counsel’s request that the jury be given the pattern circumstantial evidence instruction. Even without being properly instructed on the special and careful consideration of the evidence that must be made in a case based wholly on circumstantial evidence, the jury struggled to reach a verdict. Although the presentation of all the testimony took only two and a half hours, the jury reviewed the evidence extensively and deliberated for nearly seven hours before declaring itself deadlocked. Instead of granting defense counsel’s request for a mistrial, the trial court issued an Allen-type instruction to the jury to keep deliberating. After additional hours of deliberation and visibly expressing their frustration to the judge, the jurors again declared themselves deadlocked the next day. Notwithstanding that the evidence was limited and the jury had steadily persevered in its effort to reach a verdict, the court again denied defense counsel’s request for a mistrial, and gave the jury a second Allen instruction. After deliberating further, and being held, without explanation, past the courthouse closing time, the jury then delivered a verdict. Given the likely coercive effect on 6 the verdict, the trial court’s actions in giving two Allen instructions denied Mr. Hardy a fair trial. 7 STATEMENT OF FACTS The Incident On the evening of February 7, 2011, Donnelly McCants, a security guard employed by All Seasons Protective Security (“All Seasons”), contracted to provide security for the filming of a music video at Amnesia Nightclub, located on 29th Street between 11th Avenue and 12th Avenue in Manhattan. T. 18, 72-75; A. 7, 61-64. McCants initially called three other individuals to assist him in providing security at Amnesia, but when Amnesia General Manager David Mundo decided to open one of the nightclub’s two bars, Mundo requested that McCants call another person to provide additional assistance. T. 75; A. 64. After consulting with Reynaldo McMikle, another All Seasons employee who was on site, McCants called Pettis Hardy to provide the additional security at Amnesia. T. 77; A. 66. Upon his arrival at Amnesia, Mr. Hardy was assigned to work at the front door of the nightclub and search people’s bags for contraband, such as weapons. T. 141; A. 130. Some time after midnight, on the morning of February 8, Mundo requested that McMikle send one of the security personnel to the closed bar, as he was concerned that people might be stealing the unsecured liquor. T. 148; A. 137. McMikle directed Mr. Hardy to meet Mundo at the bar, and Mundo asked both 8 that Mr. Hardy move purses and other bags that had been placed on the closed bar, T. 142-43; A. 131-32, and that Mr. Hardy keep an eye on the bar. T. 41-42; A. 30- 31. Saajida Roberts, the complaining witness, testified that at approximately 6:00 a.m., as the music video filming was coming to an end, Mr. Hardy instructed Roberts and her friends to pack up their bags, which were located at a couch near the area that Mundo had asked Mr. Hardy to monitor. T. 50-52; A. 39-41. Roberts, a stylist who was providing clothing, hairdressing, and makeup for the video, T. 47-48; A. 36-37, claimed that she told Mr. Hardy that she was waiting for a woman who was in the video, so that Roberts could retrieve a dress for which she was responsible. T. 52; A. 41. Roberts testified that Mr. Hardy remained in the area and spoke amicably with the women, and Roberts used her cell phone to record video of Mr. Hardy’s conversation with her friends. T. 52; A. 41. At the conclusion of the music video filming, Roberts packed her bags and, with the help of her friends, brought them to her car. T. 60; A. 49. Unable to open her trunk due to the car that was parked behind her, Roberts testified that she waited outside her car, and Mr. Hardy passed her on the street as he left Amnesia. T. 60; A. 49. McMikle testified that he saw Mr. Hardy leave the club at approximately 7:00 9 a.m., but did not see him holding Roberts’s bag, or notice anything unusual about his attire. T. 143-44; A. 132-33. After loading her car, Roberts began driving her friends home and realized that she did not have her purse with her. T. 60-61; A. 49-50. Roberts testified that she remembered leaving her purse on top of a couch by the back bar, and that the purse held her wallet, approximately $300 in cash, her makeup, a Bluetooth device, jewelry, and her glasses. T. 60-61; A. 49-50. Roberts obtained the number for Amnesia, but by the time she called, between 11:00 a.m. and 12:00 p.m., the club was closed. T. 61; A. 50. At approximately 8:00 p.m. on February 8, 2011, Roberts spoke with an unnamed woman at Amnesia, who checked the nightclub’s lost and found and couches for Roberts’s purse, but did not find it. T. 61; A. 50. The next day, Roberts called back and asked Mundo to view the security footage at the club to determine what happened to the purse. T. 61; A. 50. Pursuant to Roberts’s request, Mundo retrieved the security footage from the evening of the music video filming. T. 23; A. 12. On the video, which was time-stamped at 6:38 a.m., Mundo observed Mr. Hardy picking up a purse that matched Roberts’s description, and looking through it. T. 28; A. 17. Mundo observed Mr. Hardy putting the purse underneath him, putting it back on the couch, and then picking it up again. T. 28-29; A. 17-18. Mundo also observed 10 himself conversing with Mr. Hardy while Mr. Hardy was holding the purse, but did not remember the substance of their conversation, and did not believe he noticed the purse at that time. T. 29; A. 18. Security footage from a different angle, played by defense counsel during summation, showed Mr. Hardy continuing his duties after leaving the vicinity of the first camera, continuing to pick up trash and move other debris. T. 162-63; A. 152-53. The video showed Mr. Hardy passing other small purses, without moving them. T. 163; A. 153. Mundo also viewed footage from a security camera outside of Amnesia. T. 29-30; A. 18-19. On video footage from this camera, that was time-stamped 6:44 a.m., Mundo observed Mr. Hardy look out of the exit to the club, where Roberts and her friends were waiting to load their car, and then return inside. T. 30-31; A. 19-20. None of the security footage that was played for the jury showed Mr. Hardy leaving the club with the complainant’s bag. After viewing the security footage, Mundo called McCants to explain what he saw, and McCants told Mundo that he was going “to do his due diligence,” and the two decided to report what they saw to the police. T. 31; A. 20. Mundo then called Roberts, who came to the club to view the security footage, and suggested that she contact the police as well. T. 31; A. 20. Mundo then gave the security 11 footage to Roberts, who filed a complaint with the police. T. 61-62; A. 50-51. On cross examination McCants admitted that the video footage, which Mundo showed to him, showed Mr. Hardy leaving Amnesia, but that he did not see Mr. Hardy carrying Roberts’s purse at that time. T. 88; A. 77. On the evening of February 12 and the morning of February 13, Mundo and McCants spoke about the security footage with Police Officers Vincent Fontana and Duane Percy, who were plainclothes officers assigned to monitor nightclub security and regulatory compliance in the 10th Precinct. T. 32, 99-100; A. 21, 88- 89. The four believed that Mr. Hardy had stolen Roberts’s purse, and developed a plan to arrest him. T. 81; A. 70. McCants testified that he called Mr. Hardy on February 12 and requested that he return “the girl’s bag.” T. 82; A. 71. McCants claimed that Mr. Hardy denied knowledge of “the bag,” but that after McCants referenced the security footage, Mr. Hardy purportedly said, “I don’t have it, but I can get it.” T. 83; A. 72. McCants claimed he told Mr. Hardy that the woman simply wanted her bag back, and that he still needed to pay Mr. Hardy for his work on February 7-8. T. 83-84; A. 72-73. Mr. Hardy agreed to meet McCants at the club to obtain his paycheck, and McCants requested that he bring the bag. T. 83; A. 72. 2Defense counsel requested that the video be played without narration, but the court permitted it. T. 27-28; A. 16-17. 12 In the early morning on February 13, McCants spoke with Percy and Fontana to inform them that Mr. Hardy would be coming to the club to pick up his paycheck. T. 83; A. 72. McCants waited at the corner of 11th Avenue for Mr. Hardy, and called Percy as Mr. Hardy approached. T. 84-85; A. 73-74. McCants saw that Mr. Hardy did not have Roberts’s purse, and asked Mr. Hardy where it was. T. 85; A. 74. Mr. Hardy replied, “I don’t have it.” T. 85; A. 74. After McCants replied, “then we are going to have a problem,” Fontana and Percy approached the two and then arrested Mr. Hardy. T. 90; A. 79. During the trial, the prosecution introduced two exhibits of video surveillance, described supra, taken at Amnesia on the morning of February 8, 2011. T. 23, 29; A. 12, 18. The first footage, which depicted Mr. Hardy looking into the purse, picking it up, and walking away, was introduced during the testimony of David Mundo, who had initially viewed the footage in response to the complainant’s questions about her purse. T. 24-25; A. 13-14. Mundo was questioned and gave commentary about what was depicted in the video while it was played during his testimony.2 The prosecution played the video in intervals and would pause the footage and ask Mundo what he had observed on the video, 13 allowing Mundo to provide post-hoc narration for each segment of the footage. T. 28-31; A. 17-20. The complainant was also asked to narrate events depicted by the Amnesia surveillance footage, including those that she did not personally witness. T. 57; A. 46. Roberts never saw Mr. Hardy with her purse that night, T. 63; A. 52, but she was permitted by the court to narrate video of Mr. Hardy picking up and holding her purse, though she was explicitly not observing him do so at the time. T. 57; A. 46. The Court Denies Defense Counsel’s Request for the Pattern Circumstantial Evidence Charge and Instead Gives a “Similar” Charge. Prior to the defense and prosecution summations, the court gave counsel the opportunity to review the proposed jury charge, and requested suggestions, objections, and comments regarding its content. T. 153; A. 143. Defense counsel requested that the court give the CJI charge for circumstantial evidence, the “full circumstantial evidence charge… that instructs the jury that … if multiple inferences can be drawn and they are all reasonable… the inference of guilt is not beyond a reasonable doubt.” T. 153; A. 143. The court noted that the language requested is typically used when the prosecution’s case is based wholly on circumstantial evidence. T. 154; A. 144. The prosecution argued that the alleged admissions by Mr. Hardy were direct evidence sufficient to obviate the need for 14 the circumstantial evidence charge. T. 154; A. 144. The court agreed, and explained to defense counsel, “I am not going to give the full language you requested… because I don’t think the case is based on entirely circumstantial evidence. I do give … similar language … and I think it’s appropriate here where the case is based on both direct and circumstantial.” T. 154; A. 144. The charge that was actually given to the jury read: While the people may prove a desired fact through circumstantial evidence, the burden remains proof beyond a reasonable doubt. This requires a two-step process. First, the circumstantial facts must be proved beyond a reasonable doubt in the same manner as direct evidence. Second, the jury must find that the existence of the desired fact is logically compelled beyond a reasonable doubt from the existence of the circumstantial evidence; thus, to find a fact beyond a reasonable doubt, the jury must find that the existence of a desired fact may be reasonably and naturally inferred from the circumstantial fact and any alternative inferences may be eliminated beyond a reasonable doubt. T. 188-89; A. 178-79 (emphasis added). The expanded circumstantial evidence charge that was requested by defense counsel more fully explains how the jury should analyze multiple inferences that may be drawn from the evidence and explains its relevance to innocence and guilt: Before you may draw an inference of guilt, however, that inference must be the only one that can fairly and reasonably be drawn from the facts, it must be consistent with the proven facts, and it must flow naturally, reasonably, and logically from them. 3There was an issue at trial as to whether Mr. Hardy used the name “Calvin Brown,” the (continued...) 15 Again, it must appear that the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and that the evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence. If there is a reasonable hypothesis from the proven facts consistent with the defendant’s innocence, then you must find the defendant not guilty. If the only reasonable inference you find is that the defendant is guilty of a charged crime, and that inference is established beyond reasonable doubt, then you must find the defendant guilty of that crime. CJI2d [NY] Circumstantial Evidence (emphasis added). Despite Prolonged Jury Deliberations and Multiple Deadlock Notes, the Trial Court Issues Two Allen Charges and Holds the Jury in Deliberations Past the Courthouse Closing, Without Explanation, Before Obtaining a Verdict. After the jury charges were given on the afternoon of October 11, 2011, T. 180-95; A. 170-85, the jury retired to deliberate. At 4:07 p.m., the jury produced a note requesting a substantial amount of evidence, including clarification on elements of the court’s charge, readbacks of witness testimony, portions of the security footage, and other exhibits. The evidence requested included: Seeing the defendant exit via the video (defendant’s final exit not seen) and also when defendant searched bag (and hid bag) and video of defense angle when comes to bar; Clarity on the three elements of grand larceny; Calvin Brown picture and the arrest picture3; Mundo 3(...continued) name on a security guard license given to the police from a club employee on the night of the arrest. Although Officer Percy did not specify who had given him this license, Percy testified that the license pictured an individual who was not Mr. Hardy. T. 115; A. 104. Mundo claimed that the name “Calvin Brown” was on the security license that Mr. Hardy had provided to Amnesia, but later admitted that he could not tell if the man pictured on the license was or was not Mr. Hardy. T. 39-41; A. 28-30. Since people from the club had seen the license prior to the incident, it appears that they may have been aware that Mr. Hardy was not the person pictured on the license. 4The transcript does not contain any testimony by Roberts in which she claims to have told her friends to watch her purse, and the precise testimony include in the court reporter’s readback is not indicated. 16 testimony about when [he] saw [the] defendant holdi[n]g purse and why did not say anything about it; Roberts testimony about what she told her friends about watching her purse;4 Testimony – [McCants] – can we have the phone. Court Exhibits (“Ct. Exs.”) I-IA; A. 225-26. Both the defense and prosecution agreed that the response to the jury’s note should be provided the following day. T. 199; A. 189. The court then called in the jury and adjourned until the following morning at 9:45 a.m. T. 200; A. 190. In dismissing the jury, the trial court noted, “… we are under new guidelines to call it a day at 4:30 unfortunately – maybe fortunately – I don’t know – but I think you will be coming back tomorrow in any event.” T. 200; A. 190. On the morning of October 12, the court responded to the jury’s note, first reading back the requested testimony, then re-reading the jury charge on grand larceny, and finally playing the requested surveillance video. T. 203-07; A. 194- 17 198. The pictures requested by the jury were sent to the jury room. T. 208; A. 199. The jury then continued its deliberation. T. 208; A. 199. At 12:20 p.m., the jury sent another note, this time requesting to hear McCants’s testimony “again - full testimony” and the testimony of the complainant. T. 208; A. 199; Ct. Ex. II; A. 227. The note contained a request for slower readbacks. Ct. Ex. II; A. 227. The judge called in the jurors and admonished them that the phrase “full testimony,” “makes it difficult for [the court and attorneys] to understand the request.” T. 209; A. 200. The court asked for a clarifying note, T. 210; A. 201, and at 12:50 p.m., the jury sent a note requesting, “Any testimony from [McCants] discussing the phone call and phone conversation with the defendant.” Ct. Ex. III; A. 228. The court then held a lunch recess. T. 210; A. 201. The jury worked during the lunch recess, and upon the attorneys’ and Mr. Hardy’s return at 2:15 for the afternoon session, the court informed the parties that the jury had sent a note at 1:43 p.m. requesting the elements of petit larceny. T. 210-11; A. 201-02. The court then provided the previously requested readbacks of McCants’s and the complainant’s testimony, and again charged the jury on the elements of petit larceny. T. 212; A. 203. 18 At 3:04 p.m., after deliberating for an entire day and the afternoon of the previous day, the jury sent a note stating, “We are unable to come to a unanimous decision on all five counts.” Ct. Ex. V; A. 230; see T. 213; A. 204. Defense counsel moved for a mistrial, explaining that each of the witnesses had testified for approximately half an hour, and that the jury had been deliberating for longer than witnesses were on the stand. T. 213; A. 204. The prosecution requested that the court deny the motion for a mistrial and, as the court had proposed off the record, that the court give the jurors “not quite an Allen charge but ask them to continue to deliberate.” T. 214; A. 205. The court denied the defense’s motion for a mistrial, reasoning that, “The note does not use the strong type of language we sometimes see. There is no indication that they are hopelessly deadlocked. It is true that the trial was a relatively short one but they’ve also been deliberating a very short period of time.” T. 214; A. 205. Upon bringing the jury back to the courtroom, the court admonished the jury: Please keep trying. Now, seriously, I know it must seem like you’ve been in that room for a long time and we don’t underestimate the difficulties in the jury room. On the other hand, it’s still in my judgment a relatively short period of time that you have been deliberating. True, the trial was a relatively short one but nevertheless we are asking you to go back into that room and to keep trying. 19 We stand ready to assist you in any way that we can with the read back or any other instructions that you might need, more snacks if that would help. But, my decision is that you simply haven’t spent enough time yet in the jury room. I’m not saying you have to reach a verdict. Obviously I don’t want to coerce anyone into changing a position, but I do want you to try to continue your deliberations. So that’s it. Please return to the jury room. T. 215; A. 206. The jury then returned to the jury room to deliberate further. T. 215; A. 206. Shortly before 4:30 p.m., the court brought the jury back to the courtroom and asked the foreperson if the jury had been able to reach a unanimous verdict on any count. T. 216; A. 207. The foreperson indicated that the jury had not reached a verdict on a single count. T. 216; A. 207. The judge then instructed the jury to return the next morning, and apparently felt that the jurors’ palpable frustration was worthy of comment. The court replied, “Very well. Then it’s tomorrow morning folks, 9:45. The usual time. As soon as all 12 of you are here we’ll get you right back into the jury room. I know, I see some unhappy faces out there but this is what the law requires.” T. 216-17; A. 207-08 (emphasis added). On October 13, the jury resumed its deliberations in the morning. T. 218-19; A. 209-10. Despite its clear frustration, the jury continued to reexamine evidence and at 11:29 a.m. sent a note requesting “all the paper phone 20 records entered into evidence” indicating that it “want[ed] to see the time frame of [McCants’s call with Mr. Hardy.]” Ct. Ex. VI; A. 231; see T. 219; A. 210. The jury also requested that the judge repeat his explanation of “reasonable doubt.” Id. The court’s discussion of the requested explanation of reasonable doubt was conducted informally with both the prosecution and defense, and any requests by counsel were not included in the record. T. 219; A. 210. After recalling the jury, the judge joked, “Good morning ladies and gentlemen. Dare I say welcome back?” T. 220; A. 211. The trial judge then re-read his charge on reasonable doubt verbatim, and sent the jury back to the jury room with the exhibits it had requested. T. 220-22; A. 211-13. Justice Allen noted that the jurors were “writing furiously” while taking notes during his explanation of “reasonable doubt.” T. 222; A. 213. After further deliberation, the jury sent yet another note at 1:00 p.m., stating “We are still unable to reach a unanimous decision for all five counts.” Ct. Ex. VII; A. 232; see T. 223; A. 214. In response to the jury note, the prosecution requested a full Allen charge. T. 223; A. 214. Defense counsel objected to the prosecution’s request for an Allen charge and moved for a mistrial. T. 223; A. 214. The court granted the prosecution’s request for an Allen charge, over defense counsel’s objection, and 21 denied defense counsel’s motion for a mistrial without explanation. T. 223; A. 214. The court provided the following instruction and explanation: Once again in your latest note you have expressed great difficulty in reaching a verdict in this case. I’ve discussed the note with both sides and I’m now going to read to you an instruction. The law requires me to do so. In fact, this instruction is called the Allen charge. Although it has nothing to do with me that’s the name of the case that the charge comes from. It’s not long. Ladies and gentlemen, in every criminal case it is our hope that the jury will reach a verdict. This does not mean, however, that any of you should agree on a verdict that you do not consider to be a just verdict. Rather, I am suggesting that you should attempt to resolve your differences and to agree on a verdict that is in accordance with your findings of fact and the law as I have explained it to you. When you were selected as jurors you took a solemn oath to be fair and impartial in arriving at your final determination. It is your sworn duty, therefore, to follow all legal instructions scrupulously. For example, you have been instructed that you must apply the law to the facts even though you may not like the law or you may disagree with it. You have also been instructed to put aside all passion, all prejudice, all bias, and all questions of punishment in reaching your verdict. You have been instructed that if you find some reason during your deliberations that convinces you that you are incorrect in your point of view you are then free to change your position. I am going to ask all of you, therefore, to review the pertinent evidence once again. Please listen closely to the positions of your fellow jurors. That part is crucial. It may be that another juror has an 22 argument about some portion of the evidence or the charge which you did not think of. Above all, ladies and gentlemen, put your collective common sense to full use. This is the true genius of the jury system. Now, I am not saying that you must reach a verdict. Rather, I am saying that you must make every effort to try to arrive at a verdict and I remind you that under no circumstances may anyone compromise a conscientiously held individual position in order to arrive at a unanimous verdict. T. 224-25; A. 215-16. Shortly thereafter, at 3:47 p.m., the jury sent a note requesting to view the security footage of Mr. Hardy looking through the purse that the prosecution played, and the video of Mr. Hardy continuing his duties that defense counsel played. T. 226; A. 215; see Ct. Ex. VIII; A. 233. The court played the requested video for the jurors, and sent them to resume deliberation. T. 227-28; A. 218-19. At 4:34 p.m. that day, after the jury had been kept in deliberations past the courthouse’s 4:30 p.m. closing, the jury sent a note informing the court that it had reached a verdict. T. 228; A. 219; Ct. Ex. IX; A. 234. The jury returned a guilty verdict on all counts. T. 229-231; A. 220-22. 23 POINT I WHERE THE EVIDENCE OF LARCENY AGAINST PETTIS HARDY WAS WHOLLY CIRCUMSTANTIAL, INCLUDING HIS ALLEGED STATEMENT THAT HE COULD OBTAIN THE STOLEN PROPERTY, THE TRIAL COURT ERRED IN DENYING MR. HARDY’S REQUEST FOR THE PATTERN CIRCUMSTANTIAL EVIDENCE INSTRUCTION. Where no witness testified to seeing Mr. Hardy leave the club with the complainant’s purse, no surveillance footage showed him leaving the club with the purse, and Mr. Hardy did not confess to stealing the purse, the evidence was wholly circumstantial, and Mr. Hardy was entitled to the pattern circumstantial evidence instruction which he requested. Moreover, where the substitute instruction given by the trial court was confusing and did not convey the critical reasoning required in a proper circumstantial evidence instruction – namely, that the evidence must exclude beyond a reasonable doubt every reasonable hypothesis of innocence – the erroneous denial of the instruction was highly prejudicial. It is without question that a defendant is entitled to a circumstantial evidence instruction when the prosecution’s case rests wholly upon circumstantial evidence. People v. Santiago, 22 N.Y.3d 990, 991-92 (2013) (“It is well established that a defendant’s request for a circumstantial evidence instruction must be allowed when proof of guilt rests exclusively on circumstantial evidence.”) (citation and internal quotations omitted); see also People v. Silva, 69 24 N.Y.2d 858, 859 (1987). Thus, the failure to give a proper circumstantial evidence instruction, when requested, is reversible error. See People v. Ford, 66 N.Y.2d 428, 433 (1985). In a circumstantial case, “the jury should be instructed, in substance, that the evidence must establish guilt to a moral certainty.” People v. Daddona, 81 N.Y.2d 990, 992 (1993). Although it is not required that such an instruction contain the “moral certainty” language, it is required that the jury be instructed that “it must appear that the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and that the evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence.” People v. Sanchez, 61 N.Y.2d 1022, 1024 (1984). Under this standard, Mr. Hardy was denied a fair trial by the trial court’s refusal to give the pattern circumstantial evidence charge requested by defense counsel, and his conviction must be reversed. U.S. Const. amends. V, XIV; N.Y. Const. art. I, § 6. A. Where Mr. Hardy’s Alleged Statement Was Not Direct Evidence, the Case Against Him Was Wholly Circumstantial. The evidence presented against Mr. Hardy at trial was purely circumstantial. The security footage from Amnesia only showed Mr. Hardy looking through and moving the complainant’s purse. T. 28-29, 162-63; A. 17-18, 152-53. Mr. Hardy did not admit to taking the purse, but purportedly stated only that he could obtain it. T. 83; A. 72. The prosecution’s case required the jury to make additional 25 inferences to arrive at the conclusion that Mr. Hardy was guilty of stealing the complainant’s purse. Accordingly, defense counsel requested that the jury be given the pattern circumstantial evidence instruction. T. 153; A. 143. However, when the prosecution opposed this request on the grounds that, “There was direct evidence. There were admissions by the defendant,” T. 154; A. 144, the court denied defense counsel’s request for the charge but noted that it would give something with “similar language.” T. 154; A. 144. The prosecution’s contention that the “admissions” by Mr. Hardy constituted direct evidence is erroneous. Mr. Hardy’s statement, “I don’t have it, but I can get it,” T. 83; A. 72, is neither a confession to the theft, nor direct evidence that he is guilty of the theft of the purse; it is direct evidence only of the fact that he knew where the purse was located and believed he could obtain it. A statement pertaining solely to knowledge of the purse’s location, while arguably incriminating, is not direct evidence of guilt. For a statement to be direct evidence of guilt – and thus justify denial of a circumstantial evidence charge – the statement must admit an act by the defendant or prove a fact directly in question. Thus, a case is still wholly circumstantial where the defendant’s statement is, for example, an admission only of his presence at the scene of the crime. Sanchez, 61 N.Y.2d at 1023 (although defendant admitted to being in the victim’s apartment 26 close to the time that the strangulation occurred, the fact of his presence did not establish that he was the strangler, and thus the statement was circumstantial evidence). Likewise, even a statement that is probative of guilt is not direct evidence if it does not prove any fact directly at issue. In People v. Burke, 96 A.D.2d 971, 971 (3d Dep’t 1983), the defendant in an arson case had been asked by an acquaintance two weeks after the fire if he had “covered his tracks,” to which the defendant purportedly replied, “yes, there was nothing to worry about, he had left nothing behind, no one would find anything.” The Third Department noted that while these statements were “certainly probative of guilt and deserving of consideration by the jury in deciding defendant’s case, they are circumstantial rather than direct in nature since they do not prove any fact directly in question.” Id. Under the above reasoning, it is easy to see why a statement that, like Mr. Hardy’s, admits merely the ability to obtain stolen property does not take a case out of the realm of circumstantial evidence. In People v. Tsotselashvili, 135 A.D.2d 759, 760-61 (2d Dep’t 1987), the Second Department held that the defendant’s statement to the victim that he could get him back the money stolen in the robbery did not constitute direct evidence of guilt. Therefore, it was reversible error not to give the circumstantial evidence charge, despite the fact that the 5The prosecution’s only argument to the trial court was that Mr. Hardy’s statement provided the necessary direct evidence of guilt. See T. 154; A. 144. However, respondent contended for the first time in its brief in the Appellate Division that the surveillance video itself constituted direct evidence of Mr. Hardy’s guilt. This contention lacks merit and is unpreserved. See discussion infra. 27 defendant fled from the scene and, when caught by the victim, stated, “Please don’t call the police. I will give you your money back,” to the taxi driver who his friend and co-passenger had just robbed. Id. at 760. See also Malave v. Smith, 559 F. Supp.2d 264 (E.D.N.Y 2008) (concluding case was “based solely on circumstantial evidence,” id. at 275, where defendant accused of burglary stated that “I will bring your stuff back tomorrow at twelve o’clock” when asked by the complainant why he broke into her apartment, id. at 268). Mr. Hardy’s statement denying that he had the purse but stating that he could get it established his connection to the stolen property, but proved no fact or conduct in question with regard to the commission of the larceny. It offered a basis for making inferences, some suggestive of guilt and some not, but it did not constitute direct proof of any element of the offense or Mr. Hardy’s identity as the perpetrator. In addition, although not argued by respondent to the trial court and thus not preserved,5 the video surveillance footage also was not direct evidence of Mr. Hardy’s guilt where it showed no more than Mr. Hardy, who was employed by the club and authorized to move people’s belongings, looking through and moving the 28 complainant’s purse from one place inside the club to another. T. 28-29, 162-63; A. 17-18, 152-53. Under these circumstances, the video is not direct evidence of a wrongful taking, given that Mr. Hardy is not seen leaving the club with the purse. Where Reynaldo McMikle testified that Mr. Hardy was asked to move certain bags, T. 142; A. 131, and Mr. Hardy’s movement of the purse was thus consistent with the alternative hypothesis of Mr. Hardy merely fulfilling his duties as a security guard, an additional inference is necessary to come to the conclusion that Mr. Hardy committed larceny. Thus, respondent’s claim, raised for the first time in the Appellate Division, that the video constituted direct evidence of guilt is without merit, in addition to being unreviewable. See, e.g., People v. Hunter, 17 N.Y.3d 725, 727-28 (2011) (error to consider claim not preserved by the prosecution). The prosecution’s own arguments in summation demonstrate the presence and strength of the reasonable alternative inferences that could be drawn from (i.e., the circumstantial nature of) the evidence against Mr. Hardy. Despite the prosecution’s assertion that Mr. Hardy’s alleged statement was direct evidence that Mr. Hardy had stolen the purse, in its summation, the prosecution attempted to convince the jury to eliminate alternate inferences consistent with Mr. Hardy’s innocence that could have been drawn from the video and his statement: 29 She walks out of the bar. … and a week later he says, “I can get it.” He never goes to David Mundo and says I found a purse. He never puts it in the lost and found. He never calls out to her outside, “Hey, you forgot your purse. I was just holding it. I was trying to help you pack up.” None of that happens. T. 178; A. 168 (emphasis and internal quotations added). By attempting to convince the jury to rule out inferences that could be drawn from the evidence that would be consistent with Mr. Hardy’s innocence, the prosecution implicitly conceded that the video and Mr. Hardy’s alleged admission could give rise to inferences consistent with either guilt or innocence and are thus only circumstantial evidence of his guilt. See People v. Spencer, 1 A.D.3d 709, 710 (3d Dep’t 2003) (evidence was circumstantial where additional inferences were required to determine that drugs in defendant’s house belonged to defendant). It is clear that the evidence in this case was wholly circumstantial and, as such, the trial court erred in denying defense counsel’s request for the pattern circumstantial evidence instruction. B. The Trial Court’s Purportedly “Similar” Circumstantial Evidence Instruction Was Confusing and Omitted Crucial Information Regarding Inferences Consistent with Innocence. The error in the court’s denial of defense counsel’s request for the CJI circumstantial evidence charge was not alleviated in any way by the court’s purportedly “similar language” with regard to circumstantial evidence. The 30 court’s substitute language failed to convey the proper reasoning to the jury, neglecting to include the essential principle that circumstantial evidence must exclude every reasonable hypothesis consistent with innocence. To convey this principle, the Court has held that “whenever a case relies wholly on circumstantial evidence . . . the jury should be instructed, in substance, that the evidence must establish guilt to a moral certainty.” Daddona, 81 N.Y.2d at 992; see also People v. Carter, 97 A.D.3d 492, 494 (1st Dep’t 2012) (referencing “moral certainty” language). Alternatively, if the “moral certainty” language is not used, the jury should at least be instructed that “it must appear that the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and that the evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence.” Sanchez, 61 N.Y.2d at 1024; see also CJI2d [NY] Circumstantial Evidence (including quoted language from Sanchez). The court’s substitute instruction contained neither of these formulations of a proper circumstantial evidence charge. Instead, the court’s instruction read, in part: . . . First, the circumstantial facts must be proved beyond a reasonable doubt in the same manner as direct evidence. Second, the jury must find that the existence of the desired fact is logically compelled beyond a reasonable doubt from the existence of the circumstantial evidence; thus, to find a fact beyond a reasonable doubt, the jury must find that the existence of a desired fact may be 31 reasonably and naturally inferred from the circumstantial fact and any alternative inferences may be eliminated beyond a reasonable doubt. T. 189; A. 179. The court’s chosen language was confusing and differed sharply from the clear language of the pattern jury instruction on circumstantial evidence. Most significantly, the charge did not make clear that if multiple inferences could be drawn from the facts, the jury was required to draw the inference consistent with innocence. Indeed, the court’s charge makes no reference to inferences consistent with innocence (or conversely, inferences not consistent with guilt), but instead just generally mentions how inferences are made from facts, never explaining how such inferences must be considered in terms of reaching a verdict. Unlike with a proper circumstantial evidence charge, neither innocence nor guilt is ever mentioned, and it is hard to imagine what meaning the jury possibly took from the court’s complicated instruction. But the charge plainly failed to convey the “exclusion concept,” i.e., that the jury should convict only if the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and the evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence. Ford, 66 N.Y.2d at 442; see also Sanchez, 61 N.Y.2d at 1024. The circumstantial evidence instruction given by the court was inadequate to convey the proper standard, and thus was not an acceptable substitute. 32 In a case where the evidence was not overwhelming, and the jury struggled to reach a verdict, see Point II, infra, the harm from the court’s failure to properly instruct the jury on circumstantial evidence is patent. Because the factfinder in a circumstantial case is “required to perform a complex analytical function,” People v. Barnes, 50 N.Y.2d 375, 380 (1980), a special instruction on circumstantial evidence is intended to foreclose the danger that “the trier of facts may leap logical gaps in the proof offered and draw unwarranted conclusions based on probabilities of low degree.” Ford, 66 N.Y.2d at 442. Here, the jury was never given proper guidance on considering the circumstantial case against Pettis Hardy. Given the nature of the evidence, as well as the fact that the jury twice declared itself deadlocked, the erroneous denial of the circumstantial evidence instruction was prejudicial and warrants reversal of Mr. Hardy’s conviction. See Carter, 97 A.D.3d at 496 (reversing where charge was denied and “circumstantial evidence adduced at trial did not overwhelmingly establish defendant’s guilt”); Spencer, 1 A.D.3d at 710 (reversing where charge denied and deliberations were extensive, including a reported deadlock). 33 POINT II WHERE THE TRIAL WAS SHORT AND FACTUALLY STRAIGHTFORWARD, THE LENGTH OF JURY DELIBERATIONS EXCEEDED THE TIME THAT EVIDENCE WAS ELICITED FROM THE STAND, AND THE COURT NOTED THE FRUSTRATION OF THE JURORS WITH THE CONTINUED DELIBERATIONS, THE TRIAL COURT’S DECISION TO ISSUE TWO ALLEN CHARGES, RATHER THAN DECLARE A MISTRIAL, WAS COERCIVE AND DEPRIVED PETTIS HARDY OF A FAIR TRIAL. Although testimony was elicited from the stand for only approximately two and a half hours, the jury deliberated for almost two and a half days. The jury worked diligently throughout this time, requesting to review evidence on numerous occasions. The jurors twice declared themselves deadlocked, and the trial court explicitly noted the visible frustration of the jurors but, instead of attempting to alleviate the problem, chose to joke about the jurors’ difficulties. Despite defense counsel’s two requests for a mistrial, the court chose to issue two Allen charges. Only after the second Allen charge, mere minutes after the jury was kept, without explanation, past the courthouse closing time on the third day of deliberations, did the jurors return a guilty verdict. Here, the jury’s verdict is fundamentally untrustworthy, given that it was the product of coerced deliberations. 34 The right of any criminal defendant being tried by jury to an uncoerced verdict is required by both the United States and the New York Constitutions. U.S. Const. amends. VI, XIV; N.Y. Const. art. I, §§ 2, 6. Trial courts must not coerce or compel any jury to reach a verdict. People v. Pagan, 45 N.Y.2d 725, 726-27 (1978); see also People v. Aponte, 2 N.Y.3d 304, 309 (2004) (“defendant was entitled to an uncoerced, unanimous jury verdict”). When it appears that a deliberating jury may be deadlocked, a trial court retains discretion to declare a mistrial or issue an Allen charge to break the deadlock. See Allen v. United States, 164 U.S. 492, 501-02 (1896) (finding no error when court issued additional instructions to jury). Nevertheless, the decision to issue an Allen charge is not without limits, and a trial court must not deliver an Allen charge that operates to coerce a jury into reaching a verdict. See Plummer v. Rothwax, 63 N.Y.2d 243, 252-53 (1984) (“coaxing, inducing or pressuring the jury to return for further deliberations” may be “coercive and prejudicial and might [result] in the denial of a fair verdict to the defendant”). The trial court’s decision to give two Allen charges, despite the jurors’ sincere and concerted efforts to reach a verdict, extensive deliberations relative to the length of the trial, and expressed frustration at continued deliberations, violated Mr. Hardy’s right to an uncoerced verdict. 35 A. The Trial Court Erred in Giving an Allen Charge in Response to the Jury’s First Deadlock Note, Given the Nature of the Evidence and the Length and Diligence of the Jury’s Deliberations. When presented with the jury’s first deadlock note, the trial court’s decision to give a supplemental Allen-type instruction for the jury to continue its deliberations was erroneous. This Court has described the factors that a trial judge should use in considering whether to exercise its “broad discretion” to declare a mistrial as, “the length and complexity of the trial, the length of the deliberations, the extent and nature of communications between the court and the jury, and the potential effects of requiring further deliberation.” Plummer, 63 N.Y.2d at 251. Here, these factors weighed in favor of granting a mistrial, rather than giving an Allen instruction. As defense counsel specifically noted when requesting a mistrial, the evidence for and against Mr. Hardy was only elicited from the stand for approximately two and a half hours, and the jury had been deliberating for approximately a day prior to the delivery of its deadlock note. T. 213; A. 204. In this time, the jury reviewed the evidence and the law thoroughly, reexamining: the video evidence presented by the prosecution; the video evidence presented by the defense; the photograph of Mr. Hardy at his arrest; the security guard license bearing the name “Calvin Brown”; the testimony of Mundo, McCants, and 36 Roberts; the elements of grand larceny; and the elements of petit larceny. Ct. Exs. I, IA, II, III, IV; A. 225-29. The basic question presented by this case was whether the evidence supported the inference that Mr. Hardy stole the complainant’s purse, and the jury worked diligently to reach a consensus prior to declaring itself deadlocked. In deciding to deliver its first Allen charge to the jury, the trial court erred in primarily focusing on the length of jury deliberations while neglecting to appropriately consider the extent of the jury’s efforts and the relative simplicity of the factual issues. See T. 214; A. 205 (court noting that “It is true that the trial was a relatively short one but they’ve also been deliberating a very short period of time.”). The brevity of deliberations, however, does not necessarily warrant even one Allen charge when the factual issues presented by a trial are relatively straightforward. See Plummer, 63 N.Y.2d at 252 (where “the length of the trial was short and the issue clear, the trial court may well be justified in accepting a deadlock after only a few hours of deliberation”); People v. Cheeseborough, 158 A.D.2d 534, 535 (2d Dep’t 1990) (“it would have served no purpose” to order continued deliberation after the jury twice declared itself deadlocked in a trial “that was relatively short and free from complex legal intricacies”). There were only four prosecution witnesses and one defense witness. None of the witnesses 37 claimed to see the alleged theft, and most of the testimony was not in dispute, consisting largely of witness commentary about what was depicted on the videotape. The only testimony that required any meaningful credibility determination by the jury was McCants’s claim that Mr. Hardy said that he knew where the purse was located. Otherwise, the relevant evidence was limited to the videotape and the inferences to be drawn from the surrounding circumstances. A trial in which the presentation of this evidence took only two and a half hours is certainly one in which a genuine deadlock could occur, even without an extremely lengthy deliberation. Furthermore, the nearly seven hours of deliberation that occurred here is not inherently short. There is “no minimum time a jury must deliberate before a mistrial is considered.” People v. Baptiste, 72 N.Y.2d 356, 362 (1988). Indeed, in cases where the deliberations were even shorter than that in this case, courts have recognized that a mistrial declaration, rather than an Allen charge, may be appropriate in light of the limited nature of the evidence. See Plummer, 63 N.Y.2d at 252-53 (where credibility of the complainant was the sole issue, court did not abuse its discretion in declaring a mistrial and discharging the jury after only four and a half hours of deliberation); People v. Campbell, 203 A.D.2d 127, 127 (1st Dep’t 1994) (trial court properly declared a mistrial after only three hours of 38 deliberations where the case turned on witness identification). Nearly seven hours of deliberations over a day and a half is quite significant in a case with factual allegations as simple as those present here, and where the deliberation time nearly triples the time that it took to present the evidence. Not only did the trial court fail to properly analyze the length of the deliberations in the context of the evidence in the case, the court also erred in its focus on the fact that the jury’s note did not use the phrase “hopelessly deadlocked” or other talismanic language that expressly indicated the futility of further deliberations. See T. 214; A. 205 (court noting that the jury’s note “d[id] not use the strong type of language we sometimes see” and did not indicate that the jurors were “hopelessly deadlocked”). While the language of the jury’s note may be relevant to the inquiry, this factor should not have carried the inordinate weight that the trial court apparently gave it. In fact, given how the jurors’ deliberations proceeded, there was every reason to question the jury’s ability to reach an uncoerced verdict in a reasonable period of time. The jurors had been thorough and deliberate in their consideration of the evidence up to that point, and their declaration that “We are unable to come to a decision on all five counts,” Ct. Ex. V; A. 230, should not have been discounted, merely because they did not use the phrase “hopelessly deadlocked.” The jury had re-examined a substantial 39 amount of evidence and also requested re-instruction on the law. The jurors were carefully and thoroughly deliberating, and their inability to reach a verdict in what was a short and straightforward case warranted the granting of a mistrial. B. The Court’s Decision to Deliver an Allen Charge in Response to the Jury’s Second Deadlock Note, Which Followed the Jurors’ Further Sincere Efforts to Reach a Verdict and Frustration at Continued Deliberations, Was Unduly Coercive. Even assuming that a mistrial was not warranted at the time of the first deadlock note, it certainly should have been granted in light of, and given what transpired before, the second deadlock note. Following the first Allen charge, the jury returned to deliberate, and remained deadlocked at the end of the day. T. 215- 17; A. 206-08. In response to an inquiry from the trial judge in open court, the foreperson indicated that the jury still had not agreed on a single count. T. 216; A. 207. When the court instructed the jury to return the following day, it observed, “I know. I see some unhappy faces out there but this is what the law requires.” T. 217; A. 208. The following morning, the jury reviewed additional evidence, which consisted of the phone records introduced by the prosecution, and also requested reinstruction on the concept of reasonable doubt. Ct. Ex. VI; A. 231. At 1:00 p.m., two days after the conclusion of this short trial, the jury delivered its second deadlock note. Ct. Ex. VII; A. 232. The court then recalled the jury and delivered a second and full Allen charge over defense counsel’s 40 objection and request for a mistrial. T. 223-26; A. 214-17. The court’s issuance of this second Allen charge, which likely sent a message to the jurors that they would not be released without rendering a decision, coerced the verdict against Mr. Hardy and deprived him of a fair trial. The court’s denial of defense counsel’s request for a mistrial at the time of the second deadlock note again demonstrated its failure to properly consider the relevant factors, particularly the short length of the trial and the undisputed nature of most of the facts, as well as the cumulative effect of everything that occurred throughout deliberations. After the first Allen charge, the jury spent an additional day deliberating over evidence that had not become any more complicated in the interim. Thus, the simplicity of the case weighed even more strongly in favor of a mistrial at this point. See Plummer, 63 N.Y.2d at 252; Campbell, 203 A.D.2d at 127; Cheeseborough, 158 A.D.2d at 535. It is significant that the jury had, by this time, deliberated a total of nearly twelve hours over evidence that took only two and a half hours to present, and the jury had twice declared itself deadlocked. Where the jurors are carefully reviewing the evidence and repeatedly stating that they cannot reach a verdict, the balance tips in favor of suspending deliberations rather than risking a coerced verdict. See People v. Reed, 230 A.D.2d 866, 867 (2d Dep’t 1996) (resubmission to jury coercive following multiple notes); People 41 v. Sheldon, 136 A.D.2d 761, 764 (3d Dep’t 1988) (multiple supplemental instructions had coercive effect); see also Cheeseborough, 158 A.D.2d at 535 (court properly declared a mistrial in a short and simple trial where the jury had twice declared itself deadlocked). Moreover, there were no indications that the additional deliberations between the first and second deadlock notes were productive. In fact, the indicators were just the opposite. After the judge delivered the first Allen charge at approximately 3:00 p.m. on October 12, the jury deliberated for the remainder of the day. Before dismissing the jurors for the day, the judge brought them back into the courtroom and asked the foreperson if the jury had been able to reach a unanimous verdict on any count. T. 216; A. 207. Since the foreperson indicated that the jury still had not reached a verdict on a single count, id., it seems clear that the afternoon’s deliberations were not productive. Cf. Baptiste, 72 N.Y.2d at 361- 62 (mistrial improperly declared where, although trial was relatively short, nine witnesses gave varying accounts of the incident and jury indicated that there was “movement,” id. at 361, in its deliberations). In addition, the judge specifically noted that the jurors were visibly frustrated upon being told that they would have to return the next day and continue to deliberate, remarking, “I know, I see some unhappy faces out there but this is 42 what the law requires.” T. 217; A. 208. The jurors’ clear frustration and inability to make progress after the first Allen charge should have factored into the court’s decision as to whether to force them to continue deliberating upon receiving the second deadlock note on the next day. Since the nature of the communication between the court and the jury is a relevant factor, Plummer, 63 N.Y.2d at 251, the jury’s visceral reaction and expression of its dissatisfaction should have informed the judge’s subsequent consideration of the second deadlock note. The fact that the judge’s response to the jury’s displeasure at continued deliberations was to joke the next morning, “Dare I say, welcome back,” T. 220; A. 211, suggests that the court did not factor the jury’s expressed discontent into its decision. However, rather than joking about the jurors’ discontent, the court should have recognized the significance of their frustration with the prospect of continued deliberations, as well as the likely negative impact of this unhappiness and impatience on their ability to reach an uncoerced verdict. Instead of giving a second Allen charge, the court should have granted the defense request for a mistrial. The fact that the jury returned a verdict only minutes after the courthouse closing time, when it received no explanation for the extension of the work day and had previously expressed distaste at the prospect of prolonged deliberations, is further evidence that the verdict against Mr. Hardy was likely coerced. In this 43 case, the jurors were already visibly displeased about the judge’s instruction that they return to deliberate that day. T. 217; A. 208. The court itself had told the jurors of the 4:30 courthouse closing time, T. 200; A. 190, and the jurors delivered their verdict only four minutes after the appointed closing time. Ct. Ex. IX; A. 234. The jury’s rush to deliver a verdict, after being kept after the courthouse closing, does not suggest a verdict free of coercion. All of the circumstances surrounding the jury’s deliberations and its interactions with the court warranted the granting of a mistrial, especially after the jury sent a second note declaring itself deadlocked. The jury’s multiple requests to reexamine evidence demonstrate that the jury had taken its responsibilities seriously in attempting to reach a verdict. Following the court’s first supplemental instruction and additional deliberation by the jury, which yielded no agreement on any count by the end of the day, the judge explicitly noted the jurors’ frustration at being required to continue deliberations. The following day, the jury again requested to reexamine evidence, and approximately two days into deliberations, once again declared itself deadlocked in a case where the evidence was presented for only two and a half hours. Despite a second round and several hours more of thoughtful deliberations by the jurors, the court again dismissed their claims of deadlock and signaled to them that they were expected to reach a verdict. Under 44 such conditions, the court’s delivery of a second Allen charge was inherently coercive. Therefore, this Court should reverse Mr. Hardy’s conviction. 45 CONCLUSION For the reasons stated above, Pettis Hardy’s conviction should be reversed, and the case remanded for a new trial. Dated: New York, New York November 4, 2014 Respectfully submitted, RICHARD M. GREENBERG, ESQ. Attorney for Defendant-Appellant By: _________________________ EUNICE C. LEE, ESQ. OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, New York 10007 (212) 402-4100