The People, Respondent,v.Pettis Hardy, Appellant.BriefN.Y.October 14, 2015APL-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. REPLY 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 February 23, 2015 i TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 POINT I WHERE THE EVIDENCE IN THIS CASE WAS WHOLLY CIRCUMSTANTIAL, THE TRIAL COURT ERRED IN REFUSING MR. HARDY’S REQUEST TO GIVE THE PATTERN CIRCUMSTANTIAL EVIDENCE INSTRUCTION . . . . . . . . . . . . . . . . . . 1 A. Respondent Cannot Establish That Mr. Hardy’s Statement Was Direct Evidence of His Guilt of Larceny. . . . . . . . . . . . . . . . . . . . . . . 1 B. Respondent’s Appellate Contention That the Videotape Constituted Direct Evidence of Mr. Hardy’s Guilt Is Without Merit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 C. Mr. Hardy Was Prejudiced by the Trial Court’s Failure to Give the Pattern Circumstantial Evidence Instruction Because the Court’s Substituted Language Did Not Convey the Correct Standard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 POINT II WHERE THE TRIAL WAS SHORT AND THE LENGTH OF JURY DELIBERATIONS EXCEEDED THE TIME THAT EVIDENCE WAS ELICITED FROM THE STAND, THE COURT ERRED IN ISSUING TWO ALLEN CHARGES IN RESPONSE TO TWO DEADLOCK NOTES FROM A DILIGENT BUT VISIBLY FRUSTRATED JURY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 A. Even in Response to the Jury’s First Deadlock Note, a Mistrial Was Warranted Given the Nature of the Evidence and the Deliberations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 ii B. When the Jury Submitted a Second Deadlock Note, Following Further Careful Deliberation, as Well as Expressed Frustration, the Court Erred in Giving a Second Allen Instruction. . . . . . . . . . . 17 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 iii TABLE OF AUTHORITIES CASES Malave v. Smith, 559 F. Supp.2d 264 (E.D.N.Y 2008) . . . . . . . . . . . . . . . . . . . . . 5 People v. Burke, 62 N.Y.2d 860 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7 People v. Burke, 96 A.D.2d 971 (3d Dep’t 1983), aff’d, 62 N.Y.2d 860 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 People v. Campbell, 203 A.D.2d 127 (1st Dep’t 1994) . . . . . . . . . . . . . . . . . . . . 17 People v. Ford, 66 N.Y.2d 428 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 People v. Guidice, 83 N.Y.2d 630 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 People v. Hoke, 62 N.Y.2d 1022 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 People v. Licitra, 47 N.Y.2d 554 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3 People v. Olivo, 52 N.Y.2d 309 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10 People v. Rumble, 45 N.Y.2d 879 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 People v. Sanchez, 61 N.Y.2d 1022 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 13 People v. Tsotselashvili, 135 A.D.2d 759 (2d Dep’t 1987) . . . . . . . . . . . . . . . . 4, 5 Plummer v. Rothwax, 63 N.Y.2d 243 (1984) . . . . . . . . . . . . . . . . . . . . . . 14-17, 19 OTHER AUTHORITIES CJI2d [NY] Circumstantial Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 1 POINT I WHERE THE EVIDENCE IN THIS CASE WAS WHOLLY CIRCUMSTANTIAL, THE TRIAL COURT ERRED IN REFUSING MR. HARDY’S REQUEST TO GIVE THE PATTERN CIRCUMSTANTIAL EVIDENCE INSTRUCTION. It is undisputed that where a case is based wholly on circumstantial evidence, a defendant is entitled to a circumstantial evidence instruction. Mr. Hardy was entitled to that instruction here because neither his statement nor any other evidence in the case constituted direct evidence. Therefore, the trial court erred in denying the charge, and Mr. Hardy was prejudiced where the court’s substitute instruction was woefully inadequate. A. Respondent Cannot Establish That Mr. Hardy’s Statement Was Direct Evidence of His Guilt of Larceny. Respondent simply cannot overcome the fact that Mr. Hardy’s statement, “I don’t have it, but I can get it,” T. 83; A .72, is not direct evidence that he stole the complainant’s purse. It is not an admission to the theft, any element of the theft, or any fact at issue. Admitting the ability to retrieve stolen property is plainly not direct evidence of larceny. Thus, it is not surprising that respondent is unable to establish, by either logic or case law, that the statement justified the denial of a circumstantial evidence instruction. 2 Although respondent acknowledges that the statement does not include an admission of taking the purse, respondent argues that Mr. Hardy’s statement, if analyzed under the proper “context,” can be deemed direct evidence. Resp. Br. at 20. It is ironic that respondent takes this position, given that if one must look to the context in order to determine a statement’s import, then that already is a strong indicator that the statement is not direct evidence. Indeed, it is only by respondent making additional inferences that the statement can be “read as an admission” that Mr. Hardy was the person who took the purse. Id. But respondent is wrong when it contends that Mr. Hardy’s failure to deny taking the purse in the face of McCants’s accusatory statement and reference to the video surveillance, combined with the statement that he could get the purse, amounts to direct evidence. Although his statement that he could obtain the purse is arguably inculpatory, it is not direct evidence that he took the purse, or even, as respondent argues, that he “had control over it.” Resp. Br. at 21. It demonstrates no more than that he believed that he could obtain it, which is not direct evidence of larceny. Respondent fares no better with its unremarkable assertion that a defendant’s statement is direct evidence if it “‘constitute[s] direct evidence of many of the principal facts in issue.’” Resp. Br. at 21 (quoting People v. Licitra, 47 N.Y.2d 554, 559 (1979)). This is just another way of stating that a statement is 3 direct evidence if it is an admission of facts establishing at least some of the elements of the offense. In Licitra, the defendant had admitted almost all of the facts in support of his manslaughter conviction, including that he had taken a gun out from his waist when it went off and shot his wife. 47 N.Y.2d at 556. That scenario could not be more distinct from Mr. Hardy’s case, where his statement did not contain an admission of committing any act. For similar reasons, respondent’s citation to other cases in which the defendant actually admitted doing something is equally unavailing. See, e.g., People v. Guidice, 83 N.Y.2d 630, 636 (1994) (finding defendant’s statement a “relevant admission of guilt” in an assault case where he said that he “sent two guys to break [the complainant’s] legs,” and he “put him in the hospital”) (internal quotations omitted); People v. Rumble, 45 N.Y.2d 879, 880 (1978) (concluding statement to be direct evidence where defendant told brother that “I’m not responsible for what I did”) (emphasis added). Respondent repeatedly makes conclusory assertions about the statement’s meaning, but its various arguments are just the inculpatory inferences that respondent believes should be made from Mr. Hardy’s statement. See, e.g., Resp. Br. at 20 (Mr. Hardy’s statement “could only be read as an admission that he knew where [the purse] was because he had stolen it.”); id. at 21 (statement direct evidence that he stole the purse because it “showed that [Mr. Hardy] knew 4 precisely who the owner of the stolen purse was” and “made clear that he had the power to retrieve the purse and return it”); id. at 22 (in light of McCants’s accusation, “statement could only be read as an admission that [Mr. Hardy] had stolen [the purse]”). Although respondent maintains that there is only one inference to be made from the statement, there is another obvious inference that respondent conspicuously ignores – that Mr. Hardy knew who was in wrongful possession of the purse and believed that he could convince that person to return it. Respondent is entitled to doubt that inference if it chooses, but it cannot ignore the fact that it, like respondent’s inference, is being made from circumstantial evidence. Respondent also utterly fails to distinguish the case law that makes clear that a defendant’s admission that he knows where stolen property is located and can get it back does not constitute direct evidence of his guilt of the theft. Contrary to respondent’s claim, People v. Tsotselashvili, 135 A.D.2d 759 (2d Dep’t 1987), is directly on point. In Tsotselashvili, the defendant and his friend were in the back of a taxi when his friend grabbed the driver and took his money. Id. at 760. Both men fled the cab, and when the driver and a passerby apprehended the defendant, he stated, “Please don’t call the police. I will give you your money back.” Id. Despite the defendant’s flight and statement that he could 1To the extent that respondent is attempting to distinguish Tsotselashvili based on the fact that the defendant was not the one who grabbed the complainant’s money, that attempt fails as well. The case did not turn on the fact that the defendant was charged based on an allegation of shared intent, rather than actual joint physical conduct in taking the money, but instead it was the fact that the statement, even when considered with the defendant’s flight, did not constitute direct evidence of guilt. 135 A.D.2d at 760 (“[n]either the defendant’s flight nor the statements he made constitute direct evidence”). 5 obtain the stolen property, the court concluded that the statement was only circumstantial evidence of guilt. Respondent’s attempt to distinguish Tsotselashvili is just a circular argument that the instruction was warranted in that case because there was no direct evidence there, but there is in Mr. Hardy’s case. See Resp. Br. at 22-23 (“But, in that case [Tsotselashvili], unlike here, there was no direct evidence that the defendant took the stolen property.”).1 Respondent also cannot distinguish Malave v. Smith, 559 F. Supp.2d 264 (E.D.N.Y 2008), in which the court concluded that a statement admitting the ability to obtain stolen property does not constitute direct evidence of guilt. See id. (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). The only answer respondent has is to note that the judge “never explained why he concluded that the case was wholly circumstantial.” Resp. Br. at 23 n.10. Of course that “why” question misses the point because the fact remains that, whatever the specific reasoning behind its 6 decision, the court had to have concluded that the statement was not direct evidence. Likewise, respondent fails to distinguish People v. Burke, 96 A.D.2d 971 (3d Dep’t 1983), aff’d, 62 N.Y.2d 860 (1984), where the defendant’s statement was even more strongly a suggestion of guilt than the statement here. In Burke, the defendant had been charged with arson and was asked by an acquaintance two weeks later, in a conversation about the fire, whether he had “covered his tracks,” to which the defendant replied, “yes, there was nothing to worry about, he had left nothing behind, no one would find anything.” 96 A.D.2d at 971. Respondent argues that Burke is distinguishable based on a single phrase that it highlights in this Court’s decision affirming the Third Department, noting that the defendant’s statement, “‘even if accepted by the jury as relating to the crime charged, [ ] still required an inference that [the] defendant had set the fire.’” Resp. Br. at 22 (quoting Burke, 62 N.Y.2d at 861) (emphasis added). From this, respondent wildly extrapolates that the only reason the Court found the statement to be circumstantial is that the Court found some uncertainty as to whether the defendant’s statement related to the crime charged, despite the fact that the statement was made in response to a direct statement about the charged arson. See Resp. Br. at 22. According to respondent, since there is “no doubt” that Mr. 7 Hardy’s statement related to the theft of the purse, that makes his statement an admission, where the defendant’s in Burke was not. Id. However, the language of the Court’s decision, even as quoted by respondent, makes clear that its basis was a finding that the statement was circumstantial evidence because it was not a “direct[] acknowledg[ment] of guilt, but [rather merely] inculpatory acts from which a jury may or may not infer guilt.” Burke, 62 N.Y.2d at 861. Applying that holding, as well as those from the other above-cited cases, it is clear that Mr. Hardy’s statement did not constitute direct evidence. B. Respondent’s Appellate Contention That the Videotape Constituted Direct Evidence of Mr. Hardy’s Guilt Is Without Merit. Although respondent only argued before the trial court that the case was not wholly circumstantial because “[t]here were admissions by the defendant,” T. 154; A. 144, respondent has argued on appeal that the surveillance video itself constituted direct evidence. See Resp. Br. at 15-17. Respondent is wrong. The video surveillance footage 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 complainant’s purse from one place inside the club to another. T. 28-29, 162-63; A. 17-18, 152-53. As an initial matter, respondent cannot successfully portray the prosecution at trial as having implicitly argued that the video was direct evidence. In response 2Although respondent points to places in the colloquy between the parties and the court where the prosecutor mentions how the video purportedly shows that Mr. Hardy took the purse intending to permanently deprive the complainant of it, Resp. Br. at 19 (citing T. 152; A. 142), those comments were not made in the context of discussing the circumstantial evidence charge. Instead, those comments were made in response to defense counsel’s motion to dismiss the charge, and the comments did not, in any event, assert that the video was direct evidence but merely argued the inferences that the prosecution believed should be drawn from that and all of the other evidence in the case. 8 to the question of whether the case was based entirely on circumstantial evidence, the prosecution’s response, in its entirety, was: “I don’t see how that charge is appropriate here. There was direct evidence. There were admissions by the defendant. It’s not a circumstantial case in its entirety.” T. 154; A. 144. Where the prosecution made no reference to anything but the statement, defense counsel had no reason or opportunity to address the current claim that the video also constituted direct evidence. Although respondent tries to suggest that the prosecution was just offering “one example” out of many reasons why there was direct evidence in the case, Resp. Br. at 18, it is clear that the prosecution was saying that the statement was the reason why there was direct evidence.2 Furthermore, the court’s ruling was almost certainly based on the statement as well. Given the manner in which the factual claims about the evidence are intertwined with the legal determination of whether a circumstantial evidence charge is warranted, it is, contrary to respondent’s contention, Resp. Br. at 18, entirely fair to deem respondent’s argument on this issue unpreserved. But even if 9 this Court holds otherwise and considers it, respondent’s position remains untenable. Respondent concedes that no person observed and no video surveillance depicts Mr. Hardy leaving the club with the complainant’s purse. Resp. Br. at 16. It is also clear that Mr. Hardy’s position as an employee of the club authorized him to move people’s belongings. See T. 142; A. 131. Nonetheless, respondent claims that the video’s depiction of Mr. Hardy moving the complainant’s purse in any fashion constitutes direct evidence of larceny. Resp. Br. at 16. However, respondent is wrong in its contention that evidence of any movement of the complainant’s purse is sufficient to satisfy the “taking” element of larceny. See id. Although movement of any kind may constitute “asportation,” it does not necessarily establish a larcenous “taking.” The “taking” element of larceny is established when a person exercises dominion and control over property in a manner inconsistent with the continued rights of the owner. See People v. Olivo, 52 N.Y.2d 309, 318 (1981). Although even limited movement may be a component of a taking, mere evidence of movement does not, in and of itself, establish a taking. See id. Therefore, respondent’s reliance on Olivo, which addressed whether a grand larceny was established when a shoplifter did not make it out of the door of the 10 store, is misplaced. See Resp. Br. at 66. Olivo simply held that “in certain situations, even though the shoplifter was apprehended before leaving the store,” a person may be convicted of larceny. Id. at 313 (emphasis added). The critical issue for the Court in Olivo was an exercise of dominion and control inconsistent with the rights of the owner, and the Court concluded that, in the shoplifting context, concealment of property, furtive behavior, proximity to an exit, and possession of shoplifting tools all could be used to establish a “taking,” even without the shoplifter leaving the store. Id. at 319. In other words, property need not be completely removed from the premises as long as there has been some physical movement and an exercise of dominion and control that is inconsistent with the owner’s rights. See id. at 318-19. This hardly supports respondent’s claim that, standing alone, the videotape evidence of Mr. Hardy, an employee of the club, moving the complainant’s purse from one place inside the club to another proves a larceny by direct evidence. In fact, even if Mr. Hardy were not an employee of the club, the videotape, without additional inferences, would not prove a larceny. As such, the video was not direct evidence of guilt. 11 C. Mr. Hardy Was Prejudiced by the Trial Court’s Failure to Give the Pattern Circumstantial Evidence Instruction Because the Court’s Substituted Language Did Not Convey the Correct Standard. When the trial court refused to give the pattern circumstantial evidence instruction that Mr. Hardy requested and instead substituted its own language, it failed to properly inform the jury about how to analyze circumstantial evidence. Specifically, the “exclusion concept,” which respondent concedes is a necessary component of any proper circumstantial evidence instruction, Resp. Br. at 25, was not conveyed by the court. Instead, it gave an instruction that, at best, ignored the concept, and, at worst, confused it. In order to give a proper instruction as to the exclusion concept, a court must inform a jury 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) (emphasis added); see also CJI2d [NY] Circumstantial Evidence (including quoted language from Sanchez). Respondent simply cannot show that the instruction given by the court conveyed that concept. The court’s instruction never mentioned the need for the jury to exclude every inference consistent with innocence before coming to a verdict of guilt. Although the court’s instruction mentioned eliminating alternative 3Respondent apparently believes that Mr. Hardy’s critique of the language of the court’s instruction is a second legal claim, in addition to the failure to give the requested pattern instruction, and contends that this second argument is unpreserved. Resp. Br. at 27 (citing People v. Hoke, 62 N.Y.2d 1022, 1023 (1984) (no preservation where claim that the language of the court’s given alibi charge was itself reversible error was not made below)). However, rather than raising an additional claim as to the faulty nature of the court’s instruction, Mr. Hardy is simply demonstrating that the court’s failure to give his requested charge was plainly prejudicial, given the deficiencies in the instruction the court actually gave. 12 inferences while making determinations about the existence of a desired fact, that is hardly equivalent to telling the jury to exclude every reasonable hypothesis of innocence, contrary to respondent’s claim. See Resp. Br. at 31. An “alternative inference” is not the same as an “inference of innocence,” and even if it were, the court’s instruction still would have been inadequate because it did not connect this instruction about inferences to the verdict or the jury’s duty in reaching it. Respondent acknowledges that the court’s instruction did not mention innocence, the verdict, or anything about the jury’s ultimate factfinding, but maintains that what the court did was good enough, if one factors in “the context in which the charge was given.” Resp. Br. at 26. It is unsurprising that respondent suggests looking at “context” rather than the actual language of the court’s charge; if the actual language of the charge is reviewed, it is very clear that the court’s charge was inadequate3: 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 13 reasonably and naturally inferred from the circumstantial fact and any alternative inferences may be eliminated beyond a reasonable doubt. T. 189; A. 179. It is remarkable that respondent calls the above language “straightforward and easy to understand.” Resp. Br. at 27. Not only is the language confusing on its face, but, more importantly, it in no way makes it clear how circumstantial evidence relates to the prosecution’s burden of proof, and it certainly does not explain that “the evidence [must] exclude[] beyond a reasonable doubt every reasonable hypothesis of innocence.” Sanchez, 61 N.Y.2d at 1024; see People v. Ford, 66 N.Y.2d 428, 441 (1985) (proper charge should include language regarding the “exclusion of every reasonable hypothesis of innocence”). Respondent cites no case supporting its view that the court’s instruction here was acceptable – and it was not. Mr. Hardy was entitled to the pattern circumstantial evidence instruction which he requested, and he was prejudiced by the court’s refusal to give it. In a case where the critical issues at trial required the jury to make inferences from the evidence, the jurors were never told the correct way to make those inferences in the context of reaching their verdict. This was crucial in a close case in which the jury struggled to reach a verdict. Accordingly, the court’s denial of a proper circumstantial evidence instruction denied Mr. Hardy a fair trial. 14 POINT II WHERE THE TRIAL WAS SHORT AND THE LENGTH OF JURY DELIBERATIONS EXCEEDED THE TIME THAT EVIDENCE WAS ELICITED FROM THE STAND, THE COURT ERRED IN ISSUING TWO ALLEN CHARGES IN RESPONSE TO TWO DEADLOCK NOTES FROM A DILIGENT BUT VISIBLY FRUSTRATED JURY. Despite the fact that the thoroughness of the jurors’ efforts in what was undeniably a short case suggested a genuine inability to reach an uncoerced verdict, the trial court delivered two Allen charges in response to their deadlock notes. When all of the relevant factors and circumstances are considered together, respondent’s defense of the trial court’s actions fails. A. Even in Response to the Jury’s First Deadlock Note, a Mistrial Was Warranted Given the Nature of the Evidence and the Deliberations. Respondent does not dispute that the nature of the evidence and the length of deliberations are relevant factors in determining whether a mistrial should be declared in response to a jury’s deadlock note. See Plummer v. Rothwax, 63 N.Y.2d 243, 251 (1984) (factors in deciding whether to declare mistrial are “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”). Instead, respondent tries to recast the presentation of the evidence in the case, which included only two and a half hours 4In an attempt to make the trial seem longer, respondent misleadingly states that the prosecution “presented three hours of security footage.” Resp. Br. at 37 n.12. However, the full three-hour videotape was never “presented” to the jury during trial. The portions of the three- hour video that were relevant and played by the prosecution during the trial amount to much less, and were primarily played during the two and a half hours of witness testimony. 5Respondent engages in a picayune exercise of noting that not every single moment of deliberations was spent with the jury conferring in the jury room, and thus respondent argues that the time that the jury spent hearing readbacks and receiving re-instruction be subtracted from the overall length of deliberations. See Resp. Br. at 37-38. Even if such an approach is adopted, the fact remains that the time the jury spent deliberating far exceeded the presentation of evidence. 15 of testimony, as lengthy and involved. Although respondent contends that the trial “presented a substantial amount of evidence,” Resp. Br. at 36, it cannot deny that the testimony was very limited. Physical evidence, in the form of photographs and the surveillance video, was also presented, but it did not add meaningful length to the trial.4 Likewise, respondent cannot succeed in portraying the trial as complex, see Resp. Br. at 36-37, particularly given its assertion elsewhere in its brief that the evidence was “overwhelming.” Resp. Br. at 28. In light of the nature of the evidence and the very short amount of time in which it was presented, it is very significant that the jury had deliberated for a period of nearly seven hours over two days before it declared itself unable to reach a verdict.5 There is no minimum length of time that deliberations must take before a mistrial is warranted, and seven hours is not inherently too short. 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 16 after only four and a half hours of deliberation). Similarly, although respondent suggests that a mistrial was not appropriate since the jurors “had given no previous indication that they were deadlocked,” Resp. Br. at 38, there plainly is no support for a rule that a first deadlock note can never warrant a mistrial. See, e.g., Plummer, 63 N.Y.2d at 251-52. As to the nature of the communication between the jury and the court, respondent argues that there was no reason to think that an uncoerced verdict was unreachable, given that the jury’s note did not indicate that it was in a “‘hopeless deadlock.’” Resp. Br. at 38 (quoting trial court at T. 214; A. 205). Although the use of such strong language is certainly a relevant factor, and Mr. Hardy is not asserting, contrary to respondent’s claim, Resp. Br. at 40, that the trial court was wrong to consider it, that factor must be considered in conjunction with all of the other factors and should not necessarily be given dispositive weight. Notwithstanding the lack of reference to a “hopeless deadlock,” there was every reason to question the jury’s ability to reach an uncoerced verdict in a reasonable period of time. The jury had been quite thorough and deliberate in its deliberations up to that point and had re-examined: the video evidence presented by defense counsel; the photograph of Mr. Hardy at his arrest; the security guard license bearing the name “Calvin Brown”; the testimony of Mundo, McCants, and 17 Roberts; the elements of grand larceny; and the elements of petit larceny. See Court’s Exhibits I, II, III, IV; A. 225-229. The jurors were carefully and diligently considering the evidence, and their inability to reach a verdict in what was a short and factually straightforward case warranted the granting of a mistrial, even upon the court’s receipt of the first deadlock note. B. When the Jury Submitted a Second Deadlock Note, Following Further Careful Deliberation, as Well as Expressed Frustration, the Court Erred in Giving a Second Allen Instruction. Respondent’s argument in support of the court’s decision to give a second Allen instruction, following another deadlock note from the jury after five additional hours of deliberations, also seems premised on the notion of some pre- determined minimum amount of time that must precede the declaration of a mistrial. Respondent contends that “even at this point the jury simply had not deliberated long enough for Justice Allen to be obliged to declare a mistrial.” Resp. Br. at 41. While respondent’s opinion is that nearly twelve hours of deliberation in a trial with two and a half hours of testimony is not long enough to find a jury genuinely deadlocked, the case law makes clear that there is no set time period for when a mistrial is appropriate. See, e.g., Plummer, 63 N.Y.2d at 252-53 (finding court properly declared a mistrial after only four and a half hours of deliberation); People v. Campbell, 203 A.D.2d 127, 127 (1st Dep’t 1994) 18 (declaring a mistrial appropriate after only three hours of deliberations). Respondent’s ability to cite cases where it was proper for courts not to declare mistrials after relatively short periods of deliberations, see Resp. Br. at 42-43, shows no more than that there is no set length of time that is dispositive. Rather, all of the circumstances must be considered, and, under the facts of this case, eleven and a half hours is a substantial amount of time. Respondent fails to back up its assertion that the jury’s communications with the court indicated that deliberations were still “productive.” Resp. Br. at 42. Respondent’s assessment that the deliberations were productive and that the jury “indicated” that it was still “moving forward,” Resp. Br. at 42, apparently is based simply on the fact that deliberations continued – an inevitable consequence given the court’s refusal to discharge the jury. The jury was still reviewing evidence and continued to deliberate, as it had been ordered to do, but it hardly “indicated” that progress was being made. In fact, when the jury’s actual communication with the judge is considered, it is plain that 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; 19 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,” despite the jury’s efforts. Indeed, a jury that is unquestionably trying hard but is not progressing is precisely the kind that is most susceptible to coercion. The jury’s only other communication with the court between the first and second deadlock notes as to the productivity of the deliberations was its visible expression of frustration upon being told that deliberations would continue the next day. The judge noticed this, remarking, “I know, I see some unhappy faces out there but this is what the law requires.” T. 217; A. 208. Contrary to respondent’s assertion, Mr. Hardy is not contending that the court should have declared a mistrial at the end of that day’s deliberations based on the jurors’ displeasure or that “[i]rritation or unhappiness on the jury’s part . . . is grounds for a mistrial.” Resp. Br. at 47. Rather, the jury’s clear frustration and inability to make progress after the first Allen charge was a meaningful communication from the jurors that should have factored into the court’s decision as to whether to force them to continue deliberating upon receipt of 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 clear and visceral 20 communication of its frustration should have influenced the judge’s subsequent consideration of the second deadlock note because the jury’s mood gave the court reason to doubt whether additional deliberations would produce an uncoerced verdict. Although respondent repeatedly touts the propriety of the language used by the court in instructing the jury, see Resp. Br. at 45, 49, that issue, as respondent acknowledges, is not what is being raised on appeal, id. at 49, and does not answer the question of whether the jury’s verdict was potentially coerced. All of the surrounding circumstances must be analyzed to determine whether the act of giving the instruction and refusing to discharge the jury was itself likely to be coercive. It is in that context that Mr. Hardy highlights the suspicious timing of the jury’s verdict, which was delivered minutes after the courthouse closing time, after which the jury would have had to return for another day. Contrary to respondent’s assertion, Resp. Br. at 47-48, Mr. Hardy is not arguing that the jury was coerced because deliberations extended past courthouse closing time or that this extension of deliberations is a separate legal ground for relief. Instead, Mr. Hardy is simply urging the Court to consider this circumstance in determining if the verdict was likely coerced. Where the jurors’ earlier request to end deliberations had been rejected by the court, it is not unreasonable to question 21 whether the jurors’ later decision to render a verdict right before they would be required to come back again for a third day was free from coercive influence. The cumulative effect of everything that had occurred from the start of deliberations weighed in favor of the court excusing the jury and declaring a mistrial upon receiving the second deadlock note, rather than giving a second Allen charge. For these reasons, this Court should reverse Mr. Hardy’s conviction. 22 CONCLUSION For the reasons stated above and in his opening brief, Pettis Hardy’s conviction should be reversed, and the case remanded for a new trial. Dated: New York, New York February 23, 2015 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