The People, Respondent,v.Pettis Hardy, Appellant.BriefN.Y.October 14, 2015APL-2014-00197 To be argued by MANU K. BALACHANDRAN (15 Minutes Requested) COVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - PETTIS HARDY, Defendant-Appellant. B R I E F F O R R E S P O N D E N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov ALAN GADLIN MANU K. BALACHANDRAN ASSISTANT DISTRICT ATTORNEYS Of Counsel JANUARY 30, 2015 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................................................. iii PRELIMINARY STATEMENT ......................................................................................... 1 COUNTER-STATEMENT OF QUESTIONS PRESENTED .................................... 2 INTRODUCTION................................................................................................................ 2 THE EVIDENCE AT TRIAL ............................................................................................ 4 The People’s Case ....................................................................................................... 4 Defendant’s Case ...................................................................................................... 11 POINT I DEFENDANT WAS NOT ENTITLED TO A CIRCUMSTANTIAL EVIDENCE CHARGE. ...................................... 13 A. Amnesia’s Surveillance Footage of the Theft Provided Direct Evidence of Defendant’s Guilt .................................................................................................. 15 B. Defendant’s Statements to McCants Constituted a Relevant Admission of Guilt and thus Direct Evidence .............................................................................. 20 C. Even if a Circumstantial Evidence Charge was Required, the Charge the Court Delivered was Sufficient ............................................................................... 23 D. Any Error in the Charge the Court Delivered was Harmless ........................ 27 POINT II THE COURT ACTED WELL WITHIN ITS DISCRETION IN DECLINING TO DECLARE A MISTRIAL IN RESPONSE TO THE JURY’S NOTES STATING THAT THEY HAD NOT REACHED A UNANIMOUS VERDICT ......................................................................... 30 A. The Pertinent Record .......................................................................................... 30 B. The First Note At Issue ....................................................................................... 35 C. The Second Note At Issue .................................................................................. 41 CONCLUSION ................................................................................................................... 50 -ii- TABLE OF AUTHORITIES FEDERAL CASES Allen v. United States, 164 U.S. 492 (1896) ........................................31, 33, 35, 41, 43-46 Malave v. Smith, 559 F. Supp.2d 264 (E.D.N.Y. 2008) ................................................... 23 STATE CASES Matter of Justin “ZZ”, 214 A.D.2d 816 (3d Dept. 1995) ............................................... 17 Matter of Rivera v. Firetog, 11 N.Y.3d 501 (2008), cert denied 129 S.Ct. 2012 (2009) ................................................................................. 36 Owen v. Stroebel, 65 N.Y.2d 658 (1985), cert denied 474 U.S. 994 (1985) .............................................................................. 36, 38 People v. Aleman, 12 N.Y.3d 806 (2009) .......................................................................... 45 People v. Aponte, 2 N.Y.3d 304 (2004)....................................................................... 35, 46 People v. Baptiste, 72 N.Y.2d 356 (1988) ......................................................................... 36 People v. Barnes, 50 N.Y.2d 375 (1980) ...................................................................... 14, 17 People v. Basir, 141 A.D.2d 745 (2d Dept. 1988) ............................................................ 17 People v. Bonilla, 225 A.D.2d 330 (1st Dept. 1996) ........................................................ 46 People v. Brian, 84 N.Y.2d 887 (1994) .............................................................................. 29 People v. Burke, 96 A.D.2d 971 (3d Dept.), aff’d, 62 N.Y.2d 860 (1984) ...................................................................................... 21-22 People v. Casper, 42 A.D.3d 887 (4th Dept. 2007) .......................................................... 15 People v. Cheeseborough, 158 A.D.2d 534 (2d Dept. 1990) .......................................... 43 People v. Cook, 52 A.D.3d 255 (1st Dept. 2008) ............................................................. 15 People v. Cortez, 242 A.D.2d 338 (2d Dept. 1997) ......................................................... 43 People v. Daddona, 81 N.Y.2d 990 (1993) ....................................................................... 14 People v. Dorm, 12 N.Y.3d 16 (2009) ............................................................................... 43 -iii- People v. Ford, 66 N.Y.2d 428 (1985) .......................................................................... 24-25 People v. Gerard, 50 N.Y.2d 392 (1980) ........................................................................... 14 People v. Gonzalez, 54 N.Y.2d 729 (1981) ....................................................................... 25 People v. Goode, 270 A.D.2d 144 (1st Dept. 2000) ........................................................ 43 People v. Guidice, 83 N.Y.2d 630 (1994) .................................................................... 14, 20 People v. Hardy, 115 A.D.3d 511 (1st Dept. 2014) ....................................................passim People v. Hoke, 62 N.Y.2d 1022 (1984) ............................................................................ 27 People v. Holmes, 204 A.D.2d 243 (1st Dept. 1994) ...................................................... 14 People v. Hunter, 17 N.Y.3d 725 (2011) ........................................................................... 18 People v. LaRock, 21 A.D.3d 1367 (4th Dept. 2005) ...................................................... 17 People v. Licitra, 47 N.Y.2d 554 (1979) ...................................................................... 15, 21 People v. Lu, 259 A.D.2d 496 (2d Dept. 1999) ................................................................ 15 People v. McDonald, 91 A.D.3d 515 (1st Dept. 2012) ................................................... 16 People v. Olivo, 52 N.Y.2d 309 (1981) .............................................................................. 16 People v. Pagan, 45 N.Y.2d 725 (1978) ................................................................. 35-36, 45 People v. Petty, 282 A.D.2d 551 (2d Dept. 2001) ............................................................ 43 People v. Rago, 24 A.D.3d 210 (1st Dept. 2005) ............................................................. 15 People v. Reddick, 159 A.D.2d 267 (1st Dept. 1990) ...................................................... 16 People v. Reed, 230 A.D.2d 866 (2d Dept. 1996) ............................................................ 44 People v. Rodriguez, 17 N.Y.3d 486 (2011) ...................................................................... 14 People v. Roldan, 211 A.D. 366 (1st Dept. 1995), aff’d, 88 N.Y.2d 826 (1996) ........................................................................................... 14 People v. Rumble, 45 N.Y.2d 879 (1978) ..................................................................... 14-15 People v. Sanchez, 61 N.Y.2d 1022 (1984) .................................................................. 24-25 -iv- People v. Santiago, 22 N.Y.3d 990 (2013) ......................................................................... 14 People v. Sheldon, 136 A.D.2d 761 (3d Dept. 1988) ....................................................... 44 People v. Silva, 69 N.Y.2d 858 (1987) ............................................................................... 14 People v. Spencer, 1 A.D.3d 709 (3d Dept. 2003) ........................................................... 16 People v. Stevens, 63 A.D.3d 624 (1st Dept. 2000) ................................................... 38, 42 People v. Tsotselashvili, 135 A.D.2d 759 (2d Dept. 1987) ............................................. 22 People v. Von Werne, 41 N.Y.2d 584 (1977) ................................................................... 14 People v. Walker, 83 N.Y.2d 455 (1994) ..................................................................... 20, 39 People v. Weston, 56 N.Y.2d 844 (1982) ..................................................................... 47-48 Plummer v. Rothwax, 63 N.Y.2d 243 (1984) ................................................. 36, 38, 40, 43 STATE STATUTES CPL 310.60(1)(a) ................................................................................................................... 36 CPL 470.05(2) ........................................................................................................... 18, 47-48 Penal Law § 155.05 ............................................................................................................... 21 Penal Law § 155.25 ............................................................................................................. 1, 3 Penal Law § 155.30(4) ........................................................................................................ 1, 3 -v- COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- PETTIS HARDY, Defendant-Appellant. BRIEF FOR RESPONDENT PRELIMINARY STATEMENT By permission of the Honorable Jonathan Lippman, Chief Judge of the Court of Appeals, defendant Pettis Hardy appeals from an order of the Appellate Division, First Department, dated March 13, 2014. That order affirmed an October 28, 2011 judgment of the Supreme Court, New York County (Bruce Allen, J.), convicting defendant, after a jury trial, of four counts of Grand Larceny in the Fourth Degree (Penal Law § 155.30[4]) and one count of Petit Larceny (Penal Law § 155.25). Defendant was sentenced, as a second felony offender, to concurrent indeterminate prison terms of two to four years on the Grand Larceny counts, to run concurrently with a determinate prison term of one year on each of the Petit Larceny count. Defendant has served his sentence. COUNTER-STATEMENT OF QUESTIONS PRESENTED 1. Did the trial court err in denying defendant’s request for a circumstantial evidence charge where the evidence against defendant included video evidence showing defendant grab the victim’s purse when she was not paying attention, look through the purse after the victim and her friends had left the area, and then carry it to the front door of the establishment, as well as defendant’s statement, after confronted with the video evidence of his theft, that he did not have the purse but could “get it”? 2. Did the trial court abuse its discretion in twice refusing to declare a mistrial and instead encouraging the jury to continue trying to reach a verdict where the trial included evidence from three different surveillance cameras, photographic evidence, phone records, and the testimony of five witnesses; where defendant raised a misidentification defense as well as a defense that he had moved the purse pursuant to his duties as a security guard; and where the jury simply stated on each occasion that they were “unable” to reach a “unanimous decision”? INTRODUCTION On February 7, 2011, Donnelly McCants hired defendant to help provide security for a music video being filmed that night at the Amnesia club in Manhattan. Towards the end of the shoot, at approximately 6:30 a.m., defendant was talking to -2- Saadija Roberts, a stylist for the music video, and her friend when he noticed that Roberts’ purse was left unattended nearby. Defendant grabbed the purse when Roberts and her friend were not looking and hid the purse until they left the area. Defendant then searched through the purse, which contained four credit cards, and walked away with it. Later that day, Roberts called Amnesia and reported that her purse was missing. David Mundo, Amnesia’s general manager, reviewed the club’s surveillance footage and saw that defendant had taken Roberts’ purse. Mundo notified McCants, who called defendant and told him to return the bag. Defendant initially denied taking Roberts’ purse, but after McCants revealed that Amnesia’s security cameras had caught defendant stealing it, he told McCants that he could get it. McCants told defendant to come by Amnesia to return Roberts’ purse and pick up his paycheck. Defendant was arrested when he arrived at the club. By New York County Indictment Number 1009/2011, filed on February 25, 2011, defendant was charged with four counts of Grand Larceny in the Fourth Degree (Penal Law §155.30[4]) and one count of Petit Larceny (Penal Law § 155.25). On October 6, 2011, defendant proceeded to a jury trial before the Honorable Bruce Allen. On October 13, 2011, defendant was convicted on all counts and on October 28, 2011, he was sentenced as set forth above. On appeal to the Appellate Division, First Department, defendant claimed that the trial court erred by, inter alia, failing to give a circumstantial evidence charge and -3- delivering two charges when the jury said it was unable to reach a unanimous verdict, instead of declaring a mistrial. In a decision and order dated March 13, 2014, the Appellate Division unanimously affirmed defendant’s conviction. See People v. Hardy, 115 A.D.3d 511 (1st Dept. 2014) (A2-4).1 The court upheld the trial court’s decision to deny defendant’s mistrial motions and instead deliver two charges, noting that “[a]lthough the trial was relatively short and simple, at each of the two junctures the circumstances indicated that further deliberations might be fruitful.” Id. at 511-12 (A2-3). The court also held that the trial court “properly declined to provide a circumstantial evidence charge, since there was both direct and circumstantial evidence of defendant’s guilt.” Id. at 512 (A4). Before this Court, defendant renews his claim that the trial court erred by failing to give a circumstantial evidence charge. He also contends that the court should have granted his motions for a mistrial due to purported jury deadlock. THE EVIDENCE AT TRIAL The People’s Case On February 7, 2011, DONNELLY MCCANTS, an employee of All Seasons Protective Services, arrived at Amnesia, a club located on West 29th Street between 11th and 12th Avenue in Manhattan, to provide security for a music video (Mundo: 1 Parenthetical page references preceded by “A” are to defendant’s Appendix. -4- A7; McCants A64). Amnesia had “a bar to the rear,” a bar to the left of the entranceway and “a bunch of sofas [ ] filling the rest of the venue” (Mundo: A11). The club had 25 to 30 surveillance cameras as well as a lost-and-found area located inside the general manager’s office (Mundo: A11, A24-25; McCants: A82). McCants arrived at 2:30 p.m. as the sole security guard on duty and anticipated working until 10:00 p.m. (McCants: A64). However, DAVID MUNDO,2 Amnesia’s general manager, told McCants that the club expected 1,000 people to arrive and planned on filming until 7:00 a.m. the next morning (Mundo: A8-9; McCants: A63- 64). Realizing that he needed help, McCants arranged for Reynaldo McMickle and two other individuals to come in (McCants: A64-65). McCants also called defendant on McMickle’s suggestion (McCants: A66-67). McCants and Mundo both knew defendant as “Calvin Brown” (Mundo: A9, A28; McCants: A67). McCants had been short-staffed at a New Year’s party and McMickle, who had worked with defendant before, had asked defendant to come in and referred to him by that name (McCants: A65, A83-84). Mundo knew defendant by this name because defendant had worked security at Amnesia on a prior occasion, and his security ID had read “Calvin Brown” (Mundo: A9, A28). 2 Mundo was convicted for selling a controlled substance in 1993 or 1994. He received 5 years’ probation (Mundo: A7-8, A33-34). -5- Defendant agreed to come in and arrived sometime after McCants left, at around 12:00 or 1:00 a.m. (McCants: A67). Defendant worked at the front of the club until the “early morning hours,” when Mundo, concerned that patrons were stealing liquor, instructed defendant to “guard” the bar located at the back of the club (Mundo: A31). Specifically, Mundo told defendant to “keep an eye on the liquor” and ensure that “nobody goes behind the back bar” (Mundo: A30-31). Meanwhile, SAADIJA ROBERTS, a freelance stylist, was dressing the artists and models participating in the music video (Roberts: A35-36). Roberts came with her family and a few friends, and brought clothing, t-shirts, and jewelry for the artists and models in three or four bags and a suitcase (Roberts: A36-37). She had her $1,200 black Gucci pocketbook, which contained jewelry, her glasses, makeup, her “blue tooth,” 200 to 300 dollars, and four credit cards: a Discover card, a Chase card, a Nordstrom’s card, and a Bank of America card (Roberts: A38-39). By 6:00 a.m., most of the club-goers had left, the film crew was shooting the last scene of the video, and Roberts and her coworkers were packing up her garments and jewelry on a white couch located near the back of Amnesia (Mundo: A8; Roberts: A39; Camera 3: 6:17:40 a.m.).3 Defendant, whom Roberts had never met before, came over to Roberts and told her to leave so the club could close (Roberts: A41). 3 Amnesia’s surveillance footage from February 8, 2011 was introduced as People’s Exhibit I. -6- Roberts explained that she had to stay until the film crew had filmed the last scene (Roberts: A40-41). Defendant, Roberts, and Roberts’ friends then joked around for the next 45 minutes, “killing time” until the film crew finished (People’s Exhibit II [iPhone video]; Roberts: A40-41). Roberts continued to pack while her friends and defendant were talking (Roberts: A45-46).4 All but one of Roberts’ friends left the area, at which point defendant sat on top of the white couch, facing away from Amnesia’s rear bar (Camera 1: 6:40:10; Camera 3: 6:40:10). Defendant had a yellow plastic bag in his left hand (Camera 1: 6:40:09; Camera 3: 6:40:05). Roberts’ friend stood at defendant’s left, also behind the couch, and Roberts’ purse was left unattended on top of the couch near defendant’s right hand (Roberts: A45; Camera 3: 6:40:10). Roberts was standing on the other side of the couch, behind defendant and to his right (Camera 3: 6:40:50). Roberts moved to the left side of the couch with her bags, and from that position defendant’s body blocked her view of her purse (Camera 3: 6:40:53). At the same time, Mundo walked past defendant (Camera 3: 6:40:53). Defendant turned his head to the right, waited for Mundo to pass and for Roberts to walk to the left side of the couch, and then grabbed Roberts’ purse and placed it on the ground (Camera 1: 4 Roberts narrated these details while watching the surveillance footage (Roberts: A44-49). -7- 6:40:58; Camera 3: 6:40:58). Defendant continued to talk to Roberts and her friend until filming finished, at which point Roberts and her friends carried Roberts’ bags to her car (Roberts: A46; Camera 1: 6:41:20; Camera 3: 6:41:20). Defendant picked up Roberts’ purse and looked through it as soon as Roberts and her friends left the area, even though Roberts had not given defendant permission to touch her bag (Camera 1: 6:42:05; Camera 3: 6:42:05; Roberts: 59-60). After searching through it for one minute, defendant grabbed Roberts’ bag and his yellow plastic bag and walked towards the front of the club, stopping momentarily to talk to Mundo and an unidentified person (Camera 1: 6:43:10; Camera 3: 6:43:10).5 Defendant walked outside, found himself in the vicinity of Roberts and her friends, and immediately went back inside the club (Camera 9: 6:44:28; Camera 1: 6:44:46; Camera 3: 6:45:18). At this point, defendant was carrying neither Roberts’ bag nor his yellow plastic bag (Camera 1: 6:44:46; Camera 3: 6:45:18). Inside the club, defendant helped another Amnesia employee sweep up trash (Camera 9: 6:44:28; Camera 1: 6:44:46; Camera 3: 6:45:18). Meanwhile, Roberts waited outside with her friends, unable to leave because her vehicle was blocked by a white truck (Roberts: A47). Defendant left the club and “sped off fast” past Roberts and her friends (Roberts: A49, A52). Defendant did not 5 Mundo recalled talking to defendant but could not remember if he saw defendant carrying Roberts’ purse (Mundo: A18). At the time, Mundo was preoccupied with closing Amnesia for the night (Mundo: A18). -8- greet Roberts and her friends and did not respond to Roberts’ friends when they said “good-bye” to him (Roberts: A49, A62). Roberts did not see defendant with her purse, but she was not paying attention to him because it was raining and she was preoccupied with “something else” (Roberts: A52). Eventually, Roberts and her friends left (Roberts: A49). When Roberts was on the highway, she realized that she did not have her pocketbook and called Amnesia to report the missing purse (Roberts: A50). Mundo looked in the lost-and-found, as well as the rest of the club, but did not find it (Mundo: A14, A23-24). He then checked Amnesia’s surveillance footage, which showed defendant “grab[bing]” Roberts’ purse (Mundo: A17-18).6 On February 9 or 10, Mundo called McCants and showed him the footage of defendant taking Roberts’ purse (Mundo: A20; McCants: A69, 76). McCants and Mundo then called Roberts, explained what was on the video, and recommended that she report the crime to the police, which she did (Mundo: A20-21; Roberts: A50, A52). 6 At trial, the People played the surveillance videotape for Mundo. Mundo commented that it was “beyond [him] why” defendant would grab the purse, yet put it “back to where it was” on the ground “once people walked by” (Mundo: A18). Similarly, Mundo did not understand why defendant “felt the need[ ] to pick up the purse and walk away with it” (Mundo: A18). Mundo stated that defendant was not “do[ing] his job” when he walked away from the couch with the purse (Mundo: A30-31). Mundo did not testify that he instructed defendant to “move purses and other bags that had been placed on the closed bar,” as defendant implies (Defendant’s Brief at 7-8). -9- On February 12, McCants called defendant and explained that he knew “about the bag” (McCants: A71). McCants told defendant that Roberts “just wants her stuff back” and that he thought that “everything will be okay” if defendant returned the purse. Defendant replied, “I don’t know what you talking about.” However, after McCants said, “[Y]o it’s on the video. It’s on the video,” defendant stated, “I don’t have it, but I can get it” (McCants: A71-72, A80-81). Defendant also said that he knew Roberts and wanted to call her, but McCants told defendant not to contact Roberts, stating that “it would be better” if defendant just brought the purse when he stopped by Amnesia to pick up his paycheck, and defendant agreed (McCants: A80- 81). Meanwhile, McCants and Mundo met with Officers DUANE PERCY and Vincent Fontana, and the four men arranged for defendant’s arrest when defendant came to pick up his paycheck (Mundo: A21; McCants: A73; Percy: A91-92). The night of February 12, defendant called McCants and told McCants that he was near Amnesia (Stipulation 5 [Defendant’s Phone Records]; McCants: A73). McCants informed Percy -- who promptly drove to the club with two other officers -- and then met defendant outside the club (McCants: A74; Percy: A93-94, A101). McCants noticed that defendant did not have Roberts’ purse and asked defendant where it was (McCants: A74). Defendant said, “I don’t have it,” and McCants replied, “[W]e going to have problems. You supposed to bring the bag. That was the whole purpose of you coming here” (McCants: A74-75). While McCants and defendant were talking, Percy and Fontana approached defendant from behind (McCants: A75, -10- A79; Percy: A94, A101). Percy asked defendant his name, defendant answered, “Calvin Brown,” and the officers arrested him (Mundo: A22; McCants: A75; Percy: A95, A102). When Percy processed defendant’s arrest, he asked defendant whether he spelled his name with a “C” or a “K,” and defendant replied, “with a C” (Percy: A98). When Percy started writing defendant’s name, however, defendant said, “[T]hat’s not me. That’s not my name” (Percy: A98). Defendant asserted that his name was “Pettis Hardy,” but when Percy started writing, he changed his answer to “Hardy Pettis” (Percy: A98). Defendant’s fingerprints identified him as “Pettis Hardy” (Percy: A111- 12). Defendant’s Case On February 7, REYNALDO MCMICKLE, an employee of All Seasons Security, arrived at Amnesia to help provide security for a music video being filmed that night (McMickle: A124-25, A134). McMickle worked from 8:00 p.m. to 7:00 a.m. the next morning, and was in charge of security at the club after 11:00 p.m., when Donnelly McCants finished his shift and left for the night (McMickle: A125-27). Defendant had not been scheduled to work that night, but McMickle summoned him because the club expected 1,000 people to attend and one of the -11- security guards on duty was sick (McMickle: A:134-35).7 McMickle worked alongside defendant searching patrons and their bags at the door to ensure that no weapons entered the club (McMickle: A125, A128, A130, A136). Bag searches involved opening the bag’s compartments and searching “all the way to the bottom” (McMickle: A126). At some point during the night, defendant asked McMickle for a bag to carry food in, and McMickle gave him a small, yellow, see-through bag (McMickle: A131-32). “[A] couple hours before” 8:00 a.m., David Mundo, Amnesia’s senior general manager, radioed McMickle and instructed him to send a security guard to the bar located at the back of Amnesia (McMickle: A128, A130-31, A137-38). Mundo was concerned that patrons were stealing liquor from the club (McMickle: A128). McMickle sent defendant to the bar and told him to determine if anyone had taken liquor. Moreover, on Mundo’s instruction, McMickle directed defendant to move any bags, purses, or makeup cases off “the bar” to prevent patrons from stealing liquor (McMickle: A131, A137). Meanwhile, McMickle stayed at Amnesia’s entrance door, searching club goers (McMickle: A136, A138). Defendant left Amnesia at approximately 7:00 a.m., carrying only the yellow see-through bag (McMickle: A132). McMickle did not see defendant in possession of 7 McMickle had known and had worked with defendant for five to six years (McMickle: A129, A134). In that time, McMickle had never heard defendant use the aliases “Calvin Brown” or “Hardy Pettis” (McMickle: A136-37). -12- Roberts’ purse, though he did not search defendant or pat him down (McMickle: A133, A139). McMickle stayed behind and closed the club with Mundo, at approximately 8:00 a.m. (McMickle: A133, A138). POINT I DEFENDANT WAS NOT ENTITLED TO A CIRCUMSTANTIAL EVIDENCE CHARGE (Answering Defendant’s Brief, Point I). At trial, defendant’s attorney requested a “full circumstantial evidence charge,” which would instruct the jury that the “inference of guilt is not [proven] beyond a reasonable doubt” where multiple reasonable inferences can be drawn from the evidence (Charge Conference: A143). The court declined to give the charge because the People’s case was not “based entirely on circumstantial evidence,” but nonetheless included language that it thought was “substantially similar” to what defendant requested (Charge Conference: A144; Jury Charge: A178-79). On appeal, defendant renews his claim that the trial court’s failure to issue the circumstantial evidence charge in its entirety was reversible error (Defendant’s Brief at 23). Defendant is wrong. As the Appellate Division found, the court “properly declined to provide a circumstantial evidence charge, since there was both direct and circumstantial evidence of defendant’s guilt, notwithstanding that defendant’s intent was a matter to be inferred from the evidence.” Hardy, 115 A.D.3d at 512 (A4). -13- Moreover, as the trial court believed, the instruction it did give was adequate even if the case were to be considered wholly circumstantial. A trial court is required to give a circumstantial evidence charge only when the proof of guilt rests “wholly” on circumstantial evidence. See, e.g., People v. Daddona, 81 N.Y.2d 990, 992 (1993); People v. Silva, 69 N.Y.2d 858, 859 (1987); see also People v. Santiago, 22 N.Y.3d 990, 991-92 n. (2013). Thus, where the People use both direct and circumstantial evidence to establish the defendant’s guilt, the court is under no obligation to deliver an expanded circumstantial evidence charge. Daddona, 81 N.Y.2d at 992; People v. Barnes, 50 N.Y.2d 375, 380 (1980); People v. Gerard, 50 N.Y.2d 392, 397-98 (1980); People v. Von Werne, 41 N.Y.2d 584, 590 (1977). Notably, a circumstantial evidence charge is not required simply because the People established the defendant’s intent by circumstantial evidence. Barnes, 50 N.Y.2d at 380; People v. Roldan, 211 A.D. 366, 371 (1st Dept. 1995), aff’d, 88 N.Y.2d 826 (1996); People v. Holmes, 204 A.D.2d 243, 244 (1st Dept. 1994). In fact, “direct evidence” of intent is “rarely available.” People v. Rodriguez, 17 N.Y.3d 486, 489 (2011); see Holmes, 204 A.D.2d at 244 (“Indeed, intent almost invariably must be inferred from circumstantial evidence”); see, also Barnes, 50 N.Y.2d at 381. Moreover, a defendant’s “statement is considered direct evidence” if it constitutes a “relevant admission of guilt.” People v. Guidice, 83 N.Y.2d 630, 636 (1994) (citing People v. Rumble, 45 N.Y.2d 879, 880 [1978]). Thus, a circumstantial evidence charge is not required where the People’s case includes the defendant’s -14- admission of guilt. See, e.g., People v. Cook, 52 A.D.3d 255, 257 (1st Dept. 2008); People v. Casper, 42 A.D.3d 887, 888 (4th Dept. 2007); People v. Rago, 24 A.D.3d 210, 211 (1st Dept. 2005); People v. Lu, 259 A.D.2d 496, 497 (2d Dept. 1999). The statement need not be a complete confession to the crime to constitute the requisite admission. In Rumble, for example, where the defendant had started a fire that led to the victim’s death, the defendant’s post-arrest statement that he was not “responsible for what [he] did” constituted direct evidence, so that the standard for wholly circumstantial cases did not apply, because the fact-finder could interpret it as a relevant admission of guilt. Rumble, 45 N.Y.2d at 879. Likewise, a case is not wholly circumstantial if the defendant’s admissions constitute “direct evidence of many of the principal facts in issue.” People v. Licitra, 47 N.Y.2d 554, 558-59 (1979). Justice Allen’s decision to deny the requested circumstantial evidence charge accorded with these authorities. A. Amnesia’s Surveillance Footage of the Theft Provided Direct Evidence of Defendant’s Guilt To begin, the surveillance video plainly constituted all the direct evidence of defendant’s guilt needed to classify the case as one that was not wholly circumstantial. The footage showed defendant take Roberts’ purse from the top of the couch and place it on the floor when Roberts was not looking (Camera 1: 6:40:58; Camera 3: 6:40:58), open the purse and examine its contents only after Roberts and her friends had left the area (Camera 1: 6:42:05; Camera 3: 6:42:05), and then carry Roberts’ purse -15- with him to the club’s entrance (Camera 1: 6:43:10; Camera 3: 6:43:10). Thus, there was actual video footage of defendant taking property that was not his.8 Nonetheless, defendant asserts that Amnesia’s security footage is “not direct evidence of [his] guilt” because it showed defendant “looking through and moving the complainant’s purse from one place inside the club to another,” “consistent with the alternative hypothesis of [defendant] merely fulfilling his duties as a security guard” (Defendant’s Brief at 27-28). However, defendant’s acknowledgement that the tape shows him moving Roberts’ purse actually establishes that a circumstantial evidence charge was not warranted. After all, the “taking” element of larceny is satisfied by any movement of the property (“asportation”), however slight. See People v. Olivo, 52 N.Y.2d 309, 318 n.6 (1981); People v. Reddick, 159 A.D.2d 267 (1st Dept. 1990). Likewise, the case is hardly rendered circumstantial just because no person or camera directly observed defendant leaving the club with the purse (see Defendant’s Brief at 23, 28), because his movement of it inside the club was enough to show that he stole it, even if he never then left with it. See Olivo, 52 N.Y.2d at 319-20 (affirming defendants’ convictions for larceny from store notwithstanding the fact that they were stopped before they could exit the store with the stolen property); see also People v. 8 People v. Spencer, 1 A.D.3d 709, 710 (3d Dept. 2003), which defendant cites (Defendant’s Brief at 29, 32), is thus easily distinguishable. In that case, defendant was “not observed in actual physical possession of the drugs found” in his apartment. The only evidence the People presented concerning defendant’s possession was his “dominion and control over the apartment.” Id. -16- McDonald, 91 A.D.3d 515 (1st Dept. 2012); People v. LaRock, 21 A.D.3d 1367, 1368 (4th Dept. 2005); Matter of Justin “ZZ”, 214 A.D.2d 816, 816 (3d Dept. 1995); People v. Basir, 141 A.D.2d 745, 745-46 (2d Dept. 1988). Defendant’s objections, therefore, boil down to the claim that the case against him was entirely circumstantial, despite the video, because the People did not prove his intent to steal by direct evidence. However, as demonstrated and as the Appellate Division properly recognized, Hardy, 115 A.D.3d at 512 (A4), a case is not “wholly circumstantial” simply because the People need to establish a defendant’s intent by circumstantial evidence. See Barnes, 50 N.Y.2d at 380-81. For that same reason, defendant’s claim that the prosecution’s “own arguments in summation” demonstrate that the evidence against him was circumstantial, because the prosecutor “attempted to convince the jury to eliminate alternate inferences consistent with [defendant’s] innocence” (Defendant’s Brief at 28-29, citing People’s Summation at A168) is without merit. These arguments were made for the purpose of establishing defendant’s culpable intent by eliminating alternate inferences regarding that intent consistent with innocence. Defendant also contends that this Court cannot even consider whether the videotape constitutes direct evidence that eliminates the need for the charge applicable to a wholly circumstantial case. He stresses that, in the course of arguing that the charge was inappropriate, the prosecutor stated, “There was direct evidence. There were admissions by defendant” (Charge Conference: A144). In defendant’s -17- view, because the prosecutor did not go on also to specify that the videotape constituted direct evidence, the People failed to preserve such an argument (Defendant’s Brief at 27-28). In reality, the People sufficiently preserved their arguments by opposing the charge on the ground that “[i]t’s not a circumstantial evidence case in its entirety” (Charge Conference: A144). It makes no sense to preclude specific factual arguments in support of that position because the prosecutor went further by pointing to one example of direct evidence (the statement). Indeed, defendant cites no authority for the proposition that the People need to cite every fact that supports their opposition to a defendant’s application.9 Undoubtedly, too, the judge was entitled to examine the full body of proof in considering defendant’s request for the charge, not just the specific items to which the People pointed. 9 Defendant relies on People v. Hunter, 17 N.Y.3d 725 (2011), but that case is easily distinguished. In Hunter, the suppression court found a search proper under exceptions to the warrant requirement. On appeal to the Appellate Division, the People argued for the first time that the defendant did not even have standing to challenge the search at all, and the Appellate Division agreed, without addressing whether the search was in fact proper. This Court held that the Appellate Division had erred in considering the standing issue because the People had failed to preserve it. In Hunter, then, the People essentially argued on appeal that the suppression decision was wrong in a way adverse to them, and did so by raising on appeal a new substantive issue of law -- standing -- that was different than the substantive legal claim -- the validity of the search -- that the defendant was advancing. Here, in stark contrast, on appeal the People are in complete agreement with the trial court’s decision and are addressing only the same substantive issue of law that defendant is advancing -- whether he was entitled to the charge applicable in a wholly circumstantial case. See CPL 470.05(2) (issue of law must be preserved “by the party claiming error”). The most defendant can say is that the People are now focusing on different facts than those they targeted when they advanced the same legal position at trial. -18- Defendant’s proposed rule is particularly ill-suited to the circumstances here. Only moments before, in response to defendant’s motion for a trial order of dismissal, the People had specified that the “video” showed that “defendant took the purse intending to permanently deprive . . . the victim of her purse” (Charge Conference: A142). The prosecutor even asserted that the “video is clear” that defendant was engaged in “more than moving the purse” (Charge Conference: A142), which helps answer defendant’s current arguments as to why the videotape supposedly does not constitute direct evidence. Moreover, defendant’s particularity about the preservation requirement is odd because he did not even articulate the correct legal basis for his request. He did not contend that the proof was wholly circumstantial. Rather, he merely claimed entitlement to the charge because there were “various inferences that can be drawn from the evidence,” which included “the video and the testimony” (Charge Conference: A143). Notably, after the People articulated the correct standard in opposing the charge request and pointed to the statement as the requisite direct evidence, defendant did not contend that the statement did not in fact constitute direct evidence. Thus, if defendant truly wishes to have his strict view of preservation enforced, his current claim that the statement did not constitute direct evidence should be deemed unpreserved, for by failing to advance that argument at the time he deprived the People of a full opportunity to list other direct evidence, including the videotape. -19- B. Defendant’s Statements to McCants Constituted a Relevant Admission of Guilt and thus Direct Evidence Even ignoring the surveillance video, however, defendant’s statements to McCants constituted direct evidence of his guilt, obviating the need for a circumstantial evidence charge. At first, defendant denied having any knowledge of the theft, telling McCants, “I don’t know what you [sic] talking about” (McCants: A72) But then, when McCants told defendant that he was caught stealing the purse “on the video” (McCants: A72, A81), defendant immediately capitulated, telling McCants, “I don’t have it [but] I can get it” (McCants: A72, A81). He also stated that he “knew the girl” and “wanted to call her” (McCants: A80). Defendant claims that these statements to McCants are not direct evidence of his guilt, but rather are “direct evidence only of the fact that he knew where the purse was located and believed he could obtain it” (Defendant’s Brief at 25). That ignores the context of defendant’s admission. Defendant’s statement to McCants not only expressed his knowledge of the purse’s location, but also functioned as a “relevant admission of guilt,” Guidice, 83 N.Y.2d at 626, because it was in direct response to McCants’ declaration that his theft was caught “on the video” (McCants: 82, 93). Defendant’s admission that he knew where the purse was located and that he knew “the girl” whose purse it was, unaccompanied by any attempt to deny that he had stolen it, could only be read as an admission that he knew where it was because he had stolen it. -20- Put another way, defendant’s admission to McCants “constitue[d] direct evidence of many of the principal facts at issue.” Licitra, 47 N.Y.2d at 559. Specifically, defendant showed that he knew precisely who the owner of the stolen purse was and that, nonetheless, it was he who had control over it. In that regard, defendant is wrong to claim that this conversation demonstrated only that he “knew where the purse was located and believed he could obtain it” (Defendant’s Brief at 24). Rather, defendant made clear that he had the power to retrieve the purse and return it to Roberts. Indeed, the statements established that defendant had been withholding the purse and was now pledging to return it only because he viewed it to be to his advantage to do so, in an attempt to mitigate the severity of his situation after McCants revealed that Amnesia’s security cameras had caught him stealing it. Thus, contrary to defendant’s claims that the statement failed to provide direct evidence of any element of his crime (Defendant’s Brief at 27), they constituted direct evidence that he had wrongfully taken, obtained, or withheld the purse from Roberts. See Penal Law § 155.05. Defendant’s case is not like People v. Burke, 96 A.D.2d 971 (3d Dept.), aff’d, 62 N.Y.2d 860 (1984) (Defendant’s Brief at 25). In Burke, the defendant had been charged with arson and a friend of the defendant had asked him, in a conversation about the fire, whether he had “covered his tracks.” Burke, 62 N.Y.2d at 861. Defendant answered, “yes, there was nothing to worry about, he had left nothing behind, no one would find anything.” Id. This Court held that the defendant’s -21- statement constituted circumstantial evidence because, “even if accepted by the jury as relating to the crime charged, [it] still required an inference that [the] defendant had set the fire.” Id. Here, in contrast, there was no doubt that defendant’s statement “relat[ed] to the crime charged.” Id. Moreover, the defendant in Burke merely stated that he had ensured that there was no evidence tying him to the unspecified crime. He did not say anything that related to the details or elements of the crime. Thus, the jury in that case had to infer from his statements that he had set the fire. Here, by contrast, defendant admitted that he had the ability to dispose of the very proceeds of the larceny. Especially in light of the accusation by McCants to which defendant was replying, that statement could only be read as an admission that defendant had stolen those proceeds. Defendant’s citation to People v. Tsotselashvili, 135 A.D.2d 759 (2d Dept. 1987) (Defendant’s Brief at 26-27) is also inapposite. In Tsotselashvili, the defendant was travelling in a taxicab with his companion, “Sam,” when Sam grabbed the cab driver by the neck and demanded and took the driver’s money. Id. at 760. Sam exited the cab and fled into a nearby building, and the defendant fled in the opposite direction. Id. The defendant was eventually apprehended by the driver, to whom he said, “Please don’t call the police. I will give you your money back.” Id. The Second Department held that the statement did not constitute direct evidence that the defendant shared Sam’s intent, so a circumstantial evidence charge should have been given. Id. at 760-61. But, in that case, unlike here, there was no direct evidence that -22- the defendant took the stolen property. On the contrary, the defendant plainly had not been the one who actually took it, so the only way criminal liability could have been established was through proof of the defendant’s shared intent.10 C. Even if a Circumstantial Evidence Charge was Required, the Charge the Court Delivered was Sufficient Accordingly, the trial judge rightly ruled that he was not obliged to deliver a circumstantial evidence charge in this case. In any event, the court was also right to believe that the charge it delivered was substantially similar to the circumstantial evidence charge. That charge adequately informed the jury as to the proper analysis of the evidence in even a wholly circumstantial case. Indeed, defendant admitted to the Appellate Division that the charge was “technically accurate” (Defendant’s Brief in the Appellate Division at 50). Specifically, when a court gives the pattern circumstantial evidence charge, it first defines direct and circumstantial evidence, explains that the jury must decide what facts have been proven before it can determine what inferences can be drawn, and instructs that any inferences must be consistent with the facts and flow “naturally, reasonably, and logically from them.” CJI2d (NY)—Circumstantial evidence. The 10 Defendant also relies on Malave v. Smith, 559 F. Supp.2d 264 (E.D.N.Y. 2008) (Defendant’s Brief at 27). But, in that case, the federal judge never explained why he concluded that the case was wholly circumstantial, and went on to conclude that there was no reasonable probability that the verdict would have been different had the charge been given. Id. at 275. -23- court then charges the jury that the inference of guilt must be the only one that can fairly and reasonably be drawn from the facts, and that the evidence must exclude beyond a reasonable doubt every reasonable hypothesis of innocence, i.e., the “exclusion concept.” CJI2d (NY)—Circumstantial Evidence; See People v. Ford, 66 N.Y.2d 428, 442 (1985); People v. Sanchez, 61 N.Y.2d 1022, 1024 (1984). Here, although the trial court correctly determined that the case was not a wholly circumstantial one, it still charged the jury on those fundamental concepts. The court stated that the People were “relying in part on circumstantial evidence to prove the defendant’s guilt” (Court’s Charge: A178). The court then explained the difference between direct and circumstantial evidence. It defined direct evidence as “evidence which standing alone would be sufficient to establish a desired fact,” and circumstantial evidence as “facts which give rise to a reasonable inference of a desired fact” (Court’s Charge: A178). The court stated that “either type of evidence may be enough to establish guilt beyond a reasonable doubt” (Court’s Charge: A178-79). The court stressed that “[w]hile the People may prove a desired fact through circumstantial evidence, the burden remains proof beyond a reasonable doubt” (Court’s Charge: A179). The court explained, however, that analyzing circumstantial evidence “requires a two step process” (Court’s Charge: A179): First, the circumstantial evidence 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 -24- the existence of the circumstantial evidence; thus, to find a fact beyond a reasonable doubt through circumstantial evidence, the jury must find that the existence of the desired fact may be reasonably and naturally inferred from the circumstantial facts and that any alternate inference may be eliminated beyond a reasonable doubt. (Court’s Charge: A179). The court thereby made the jury aware that any facts that it inferred had to be tightly and logically related to the underlying, directly proven facts, and helped ensure that the jurors did not use inference and speculation to “leap logical gaps.” Ford, 66 N.Y.2d at 442. In light of these instructions, defendant has no grounds to complain that the court failed to apprise the jury of any standard or information it needed to assess the evidence in this case. Nonetheless, defendant asserts that the trial court’s charge was not good enough because it failed to instruct the jury that “circumstantial evidence must exclude every reasonable hypothesis consistent with innocence” (Defendant’s Brief at 23, 29-30). Even in a wholly circumstantial case, however, the court is merely obliged to convey the exclusion concept to the jury “in substance.” Sanchez, 61 N.Y.2d at 1024; People v. Gonzalez, 54 N.Y.2d 729, 730 (1981).11 The judge did precisely that here. Specifically, the court instructed the jury that it could find that the 11 Although defendant repeatedly mentions that the court did not state that the circumstantial evidence had to establish his guilt to a “moral certainty” (Defendant’s Brief at 24, 30), even he acknowledges that this Court has held that this language is not required (Defendant’s Brief at 24, citing Sanchez, 61 N.Y.2d at 1024). In fact, the “moral certainty” phrase was intentionally omitted from the current CJI charge. See CJI2d (NY)— Circumstantial Evidence n.1 (pattern circumstantial evidence charge “does not use the words ‘moral certainty’ which are no longer required in this state”). -25- circumstantial evidence proved a matter the People were seeking to establish only if it found that any “alternate” inference had been “eliminated beyond a reasonable doubt” (Court’s Charge: A179). Thus, defendant is wrong to assert that 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” (Defendant’s Brief at 31). Indeed, from this charge, the jurors certainly would have understood that they were required to acquit defendant if the evidence that supported the conclusion that defendant stole Roberts’ purse was also susceptible to any reasonable inference of innocence. Nor is there any merit to defendant’s claim that the charge was insufficient because it “just generally mention[ed] how inferences are made from facts,” without making any “references to inferences consistent with innocence” or “explaining how such inferences must be considered in reaching a verdict” (Defendant’s Brief at 31). Defendant ignores the context in which the charge was given. At the outset of the charge, the court stated that the People were “relying in part on circumstantial evidence to prove the defendant’s guilt,” and reminded the jury that “[w]hile the People may prove a desired fact through circumstantial evidence, the burden remains proof beyond a reasonable doubt.” And the court went on to explain that the People’s “desired fact” could be found only if, inter alia, any “alternate inference may be eliminated beyond a reasonable doubt” (Court’s Charge: A178-79). That was far more than a “general[ ] mention[ ]” of how inferences are drawn (Defendant’s Brief at -26- 31). The court did not need to mention inferences of “guilt” or “innocence” because it made clear that it was discussing the standard the People needed to meet to satisfy their burden of proof. Defendant now makes the conclusory assertion that the court’s charge was “confusing” and too “complicated” (Defendant’s Brief at 23, 30-31). To begin, defendant’s claim is unpreserved. Specifically, he did not lodge any objection to the content of the instruction the court gave when the court previewed it during the charge conference, or after that instruction was given to the jury, even though the court asked on both occasions if defense counsel had any objections or comments (Charge Conference: A144; Jury Charge: A186). See People v. Hoke, 62 N.Y.2d 1022, 1023-24 (1984) (where judge denied the defendant’s requested alibi charge and delivered a different alibi charge, and the defendant did not object to that charge, appellate complaint about charge actually delivered was unpreserved). In any case, defendant’s claim is without merit because the court’s instruction was straightforward and easy to understand. This conclusion is only reinforced by the facts that defendant did not object to the charge, and that the jury did not request further clarification of it. D. Any Error in the Charge the Court Delivered was Harmless Finally, even assuming both that the case was wholly circumstantial and that the charge the court delivered was not adequate for that sort of case, any error was -27- harmless because the evidence of defendant’s guilt was overwhelming. First, the surveillance footage showed defendant taking Roberts’ purse. Specifically, defendant sat on top of the couch, next to Roberts’ unattended purse, positioning himself in such a way that Roberts’ friend could no longer see it. He then waited until Roberts, who was busy packing, and Mundo, who was in the general area, moved such that they also would not be able to see him take the purse, at which point he grabbed it and placed it on the floor. Tellingly, defendant waited for Roberts and her friends to leave the area before he searched the purse and walked away with it. Moreover, although defendant had a chance to return the purse -- he walked past Roberts when leaving the club -- he instead avoided her entirely. Finally, defendant acknowledged taking the purse after McCants confronted him with the irrefutable evidence that Amnesia’s security cameras had caught him stealing it. Plainly, defendant’s purposeful positioning and the timing of his behavior, his decision to search the purse only after Roberts and her friends left the area, his failure to return the purse when he had an obvious opportunity to do so, and his admission to McCants when confronted with the irrefutable evidence of his guilt all demonstrate that defendant stole Roberts’ purse. Nor was there any merit to defendant’s claim that he had moved the purse as part of his duties as a security guard. Indeed, Mundo, who was in charge of security and thus responsible for establishing defendant’s duties, testified that he had instructed defendant only to “keep an eye on the liquor” and ensure that “nobody -28- goes behind the back bar,” and stated that defendant was not “do[ing] his job” when he moved the purse (Mundo: A30-31). Moreover, even if defendant had been instructed to “move purses and other bags that had been placed on the closed bar” (Defendant’s Brief at 8), it is uncontested that Roberts’ purse was on top of a couch far away from the back bar, and that defendant did not just move the purse but rather carried it to Amnesia’s front door. Because the evidence gave rise to only one reasonable inference -- defendant’s guilt -- the failure to instruct the jury on circumstantial evidence, even if error, plainly would not entitle defendant to a new trial. People v. Brian, 84 N.Y.2d 887, 889 (1994) (failure to give circumstantial evidence charge was harmless error). * * * In sum, the court was not required to give a circumstantial evidence charge because the People’s case was not wholly circumstantial. In any case, the circumstantial evidence charge the court did give was entirely sufficient. -29- POINT II THE COURT ACTED WELL WITHIN ITS DISCRETION IN DECLINING TO DECLARE A MISTRIAL IN RESPONSE TO THE JURY’S NOTES STATING THAT THEY HAD NOT REACHED A UNANIMOUS VERDICT (Answering Defendant’s Brief, Point II). Defendant argues that the court deprived him of a fair trial by issuing two charges in response to jury notes stating that the jury had not reached a verdict. Neither at trial or in this Court has defendant complained about the content of those instructions. Instead, he contends that urging the jurors to continue deliberating was itself coercive. As the Appellate Division found, however, the trial court “properly exercised its discretion in denying defendant’s mistrial motions” and “deliver[ed] appropriate supplemental charges to encourage the jury to reach a verdict.” Hardy, 115 A.D.3d at 511-12 (A2-3). A. The Pertinent Record The jury began its deliberations at approximately 3:00 p.m. on October 11, 2011 (Deliberations [“DL”]: A169, 171). At 4:07 p.m., the jury sent out a note requesting portions of testimony by Donnelly, Mundo, and Roberts; Calvin Brown’s security ID; footage from the video surveillance tapes; and instruction on the elements of Grand Larceny (DL: A189, A193; Court Exhibit I, IA [A225-26]). The judge informed the jury that there was not enough time to respond to its request that -30- day, as court guidelines required the courthouse to close at 4:30 p.m., and he released the jury for the day (DL: A190-91). The court responded to the jury’s request at 9:45 a.m. the next morning (DL: A190, A195-97). The jury deliberated and then sent out another note, at 12:20 p.m., requesting the “full testimony” of Roberts and McCants (DL: A199-200; Court Exhibit II [A227]). The court asked the jury whether it sought “the exact same testimony already back to [it]” or “additional testimony,” and then recessed for lunch at defendant’s request (DL: A200-02). After lunch, the jurors sent out two more notes, the first clarifying their previous request and the second asking for an instruction on the elements of Petit Larceny (DL: A202-03; Court Exhibit III, IV [A228-29]). The court responded to both notes (DL: A203). Deliberations continued until 3:04 p.m., when the jurors sent a note stating, “we the jury are unable to come to a unanimous decision on all 5 counts” (DL: A204; Court Exhibit V [A230]). Defendant moved for a mistrial, asserting that the jury had been “deliberating longer than we had witnesses on the stand” (DL: A204). The prosecutor noted that during an unrecorded bench conference the court had proposed giving “not quite an Allen charge” that asked the jurors to continue to deliberate, and contended that giving such an instruction would be appropriate (DL: A205). The court denied defendant’s mistrial motion, stating that there was “no indication” that the jury was “hopelessly deadlock[ed]” because “[t]he note does not use the strong type of language that we sometimes see” (DL: A205). The court also -31- observed that although the trial “was a relatively short one,” the jurors had been deliberating for “a very short period of time too” (DL: A205). Justice Allen brought the jury into the courtroom and stated: Thank you. Ladies and gentlemen, in your latest note you’ve indicated you’re having some difficulty in arriving at a unanimous decision. We discussed this note and I think I can answer it in three simple words. 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. 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. (DL: A206). The jurors continued deliberating until the end of the day (DL: A207). Justice Allen decided to inquire whether the jury had reached a verdict on any of the counts, given “the wording of the last note” (DL: A207). He summoned the jury and asked the foreperson whether they had “been able to reach a unanimous verdict on any of -32- the counts,” but the foreperson replied, “No” (DL: A207). Justice Allen then told the jurors that they would resume deliberations at 9:45 a.m. the next morning and commented, “I know, I see some unhappy faces out there but this is what the law requires” (DL: A207-08). The jury deliberated the next morning until 11:29 a.m., when it sent a note requesting the phone records entered into evidence as well as a rereading of the reasonable doubt charge (DL: A211; Court Exhibit: VI [A231]). The court brought the jury in, remarked, “Dare I say welcome back?” and responded to the jury’s request (DL: A211-12). At 1:00 p.m., the jury sent a note stating that it was “still unable to reach a unanimous decision for all 5 counts” (DL: A214; Court Exhibit: VII [A232]). Defendant moved for a mistrial and the People asked Justice Allen to give a full Allen charge (DL: A214). Justice Allen denied defendant’s motion (DL: A214). Upon the jury’s return to the court room, the court instructed: 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. -33- 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 you 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 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. Ladies and gentlemen, that completes this instruction and I’m therefore going to ask all of you to return to the jury room. (DL: A214-17). -34- Deliberations continued until 3:47 p.m., when the jury sent a note requesting to see portions of the security footage. The court responded to the jury’s request (DL: A217-19; Court Exhibit VIII [A233]). At 4:34 p.m., the jury sent a note stating that it had reached a verdict (Court Exhibit: IX [A234]). Upon its return to the courtroom, the jury found defendant guilty on all five counts (DL: A220). B. The First Note At Issue Defendant complains that the trial court erred by not declaring a mistrial in response to the jurors’ October 12, 2011 note that they were “unable to come to a unanimous decision on all 5 counts” (DL: A204; Court Exhibit V [A230]) (Defendant’s Brief at 35). On the contrary, the trial court appropriately exercised its discretion in determining that a mistrial would be premature, and issued a neutral and appropriate response to the jury’s pronouncement that it had not yet reached a verdict. A trial court has a responsibility to avoid a mistrial by encouraging the jurors to reach a verdict. See People v. Pagan, 45 N.Y.2d 725, 726-27 (1978). Thus, when a jury reports that it is deadlocked, a judge can issue an Allen charge, telling the jurors to adhere to their oaths and make one final effort to review the evidence and reach a verdict one way or another. Allen v. United States, 164 U.S. 492 (1896); People v. Aponte, 2 N.Y.3d 304, 308 (2004); see CJI2d(NY)—Deadlocked Jury. Alternatively, a court often acts well within its discretion when it provides a simple instruction that -35- asks the jury to “exert its best efforts and renew deliberations.” Pagan, 45 N.Y.2d at 727. A declaration of a mistrial, by contrast, is an extreme measure to be undertaken only with the greatest caution and only when there is a manifest necessity, because the jury is “hopelessly deadlocked.” People v. Baptiste, 72 N.Y.2d 356, 360 (1988). Accordingly, a trial judge may not declare a mistrial unless (1) the jury has deliberated for an “extensive period of time” and (2) the court is satisfied that the jury is unlikely to reach a verdict within a reasonable period of time. CPL 310.60(1)(a). Because the trial judge is best situated to take all of the facts and circumstances into account, the judge’s determination as to whether a mistrial is required is accorded great deference on appeal. Matter of Rivera v. Firetog, 11 N.Y.3d 501, 507 (2008), cert denied 129 S.Ct. 2012 (2009); Baptiste, 72 N.Y.2d at 360; Owen v. Stroebel, 65 N.Y.2d 658, 660 (1985), cert denied 474 U.S. 994 (1985); Plummer v. Rothwax, 63 N.Y.2d 243, 250 (1984). Factors for the trial judge to consider include the length and complexity of the trial, the length of the deliberations, the extent and nature of the communications between the judge and the jury, and the potential effects of requiring further deliberation. Rivera, 11 N.Y.3d at 507; Plummer, 63 N.Y.2d at 250. Every one of these factors supported the judge’s conclusion not to grant a mistrial in response to the jury’s first indication that it had not yet been able to reach a verdict. First, the trial presented a substantial amount of evidence for the jury to consider. As defendant concedes (Defendant’s Brief at 35), the jury had to review -36- video evidence presented by the People and the defense, photographic evidence of defendant from three different surveillance cameras, phone records, and the testimony of five witnesses,12 and then assess all that evidence in the context of the elements of Grand Larceny and Petit Larceny. Still, defendant insists that the factual issues involved at trial were straightforward (Defendant’s Brief at 36-37). However, the jury had to evaluate multiple issues: they had to assess not just the credibility of five witnesses, but also whether the credited evidence disproved defendant’s misidentification defense and defendant’s claim that he was moving Roberts’ bag pursuant to his duties as a security guard. Second, as the court noted and as defendant conceded in his brief to the Appellate Division, the jury had deliberated for “a very short period of time” when defendant first asked for a mistrial (DL: A205; Defendant’s Brief in the Appellate Division at 28). The jury deliberations had lasted less than seven hours: from about 3:00 p.m. to 4:30 p.m. on October 11, and then from about 9:45 a.m. until it issued the note in question at about 3:00 p.m. on October 12. Moreover, contrary to defendant’s assertions (Defendant’s Brief at 38), the jury had not even spent all of this time actually deliberating; in addition to the jury’s lunch break the second day, time 12 In stressing that only two-and-a-half hours of testimony was presented at trial, defendant ignores the additional, non-testimonial evidence the jury needed to assess. For example, the People presented three hours of security footage (A162). -37- was spent on readbacks of witnesses’ testimony as well as repetition of the court’s jury instructions (Court Exhibit II, III, IV [A227-29]; DL: A199-200, A202-03). Third, the nature and extent of Justice Allen’s communications with the jury counseled against declaring a mistrial. Up until this point, the jury had sent four notes to the court requesting readbacks of witness testimony, playbacks of the video evidence, and reinstruction on the elements of the crimes (Court Exhibit I - V [A225- 30]). The jury thus had given no previous indication that they were deadlocked, or that their deliberations were even the slightest bit unproductive. Rather, the jury indicated that it was still at the preliminary stage of reviewing all the evidence in the context of the elements of the crimes. Fourth, there was no suggestion that, even with further deliberation, the jury would be unable to reach a verdict within a reasonable period of time. The jury’s note merely stated that they were “unable to come to a unanimous decision on all 5 counts” (Court Exhibit V [A230]). As the court found, the jury did not use “the strong type of language we sometimes see” indicating “hopeless deadlock” (DL: A205). Compare People v. Stevens, 63 A.D.3d 624, 624 (1st Dept. 2000) (holding that the jury’s statement that it had “not [been] able to come to [a] unanimous decision” was “not indicative of a deadlock”); with Matter of Owen v. Stroebel, 65 N.Y.2d 658, 661 (1985) (jury twice expressed its “irreconcilable disagreement” and two jurors stated that there was no “possibility of rendering a verdict”); Matter of Plummer, 63 N.Y.2d at 247 (jury affirmed that it was “so hopelessly deadlocked that -38- no amount of further deliberations will be of any value”). Under these circumstances, as the Appellate Division found, Justice Allen “properly exercised [his] discretion” in denying defendant’s request for a mistrial. Hardy, 115 A.D.3d at 511-12 (A2). Clearly, at this “juncture[,] the circumstances indicated that further deliberations might be fruitful.” Id. (A2). Nonetheless, defendant asserts that the trial court “erred in primarily focusing on the length of the jury’s deliberations” (Defendant’s Brief at 36). At the same time, though, defendant also argues that the court “erred” by “focus[ing] on the fact that the jury’s note did not use . . . talismanic language that expressly indicated the futility of further deliberations” (Defendant’s Brief at 38). Thus, he necessarily undermines his own claim: clearly, the court focused on more than one factor in declaring that a mistrial would be premature. In any case, defendant’s claims are without merit because the court did not give inappropriate weight to either factor. First, the court plainly did not “neglect[ ] to appropriately consider” the length of the trial (Defendant’s Brief at 38). In denying defendant’s mistrial motion, the court commented, “It is true that the trial was a relatively short one but they’ve also been deliberating a very short period of time too” (DL: A205). Thus, defendant’s objection boils down to the fact that he disagrees with the weight the court gave to the length of the trial. But, of course, that does not show that Justice Allen failed to consider that factor or otherwise abused his discretion. See generally People v. Walker, 83 N.Y.2d 455, 459 (1994) (“Distilled to its essentials, -39- defendant's present appellate claim is really nothing more than a disagreement with the ultimate outcome of the trial court's discretionary balancing determination. Such a disagreement does not furnish a cognizable ground for intervention by this Court, which is limited to resolving questions of law”). Similarly, defendant is wrong to assert that the trial court erred by observing that the jury’s note did not use language that “expressly indicated the futility of further deliberations” (Defendant’s Brief at 38). This Court has already found it “significant” whether the jury “on its own initiative declared that it was hopelessly deadlocked.” Matter of Plummer, 63 N.Y.2d at 251. Justice Allen proceeded to give an entirely appropriate instruction to the jury. The judge asked the jurors to “[p]lease keep trying” to reach “a unanimous verdict,” noting that the jury had been deliberating only for a “relatively short period of time” (DL: A206). To that end, Justice Allen informed the jury that he was ready to assist them by providing “read back[s] or any other instructions [the jurors] might need” (DL: A206). Importantly too, the judge stressed that his instruction should not “coerce anyone into changing [their] position,” and reassured the jurors that he was “not saying [that] you have to reach a verdict” (DL: A206). Accordingly, the jury surely understood that it was not being pressured to reach a decision if one could not reasonably be reached. And, of course, the response did not in fact produce such pressure, as the jury did not produce a verdict in response to it. -40- C. The Second Note At Issue Defendant also renews his complaint that the court should have declared a mistrial following the jury’s eighth note, stating that it was “still unable to reach a unanimous decision for all 5 counts” (Defendant’s Brief at 39). In his view, giving an Allen charge was coercive, as was the court’s decision then to extend jury deliberations past the courthouse’s closing time coerced the verdict (Defendant’s Brief at 39, 42). The last of these claims is unpreserved, and all of them are without merit. To begin, just as in response to the first note in question, the court acted entirely within its discretion to deny defendant’s motion for a mistrial. As already demonstrated, the jury was tasked with reviewing a substantial amount of evidence and multiple defenses; the trial was not as simple as defendant portrays it (Defendant’s Brief at 40). Moreover, even at this point the jury simply had not deliberated long enough for Justice Allen to be obliged to declare a mistrial. When the court issued this note, less than another five hours of deliberation had passed since the last note in question, and thus only about 11.5 hours in total had elapsed.13 Again, the jury did not even spend all that time deliberating, as the judge answered jury notes and directed readbacks. 13 After the first note at issue, the jury deliberated from about 3:00 p.m. until 4:30 p.m. on October 12, when the court closed, and then from 9:45 a.m. until it issued this note at about 1:00 p.m. on October 13. -41- In that regard, as Justice Allen concluded and the Appellate Division found, the jury’s communications with the court indicated that deliberations were still productive. Hardy, 115 A.D.3d at 512 (A2). Although defendant contends that there was “no indication[ ]” to that effect (Defendant’s Brief at 41), all he really means is that the jury had not yet reached a verdict, not that they were no longer advancing toward that goal. The jury did indicate, though, that it was still moving forward. Following Justice Allen’s initial instruction to “[p]lease keep trying” (DL: A206), the jury had requested readbacks of the stipulated evidence, defendant’s phone records, and an instruction on the meaning of reasonable doubt (Court Exhibit VI [A231]). Moreover, the jurors still had given no indication that they were actually deadlocked with no reasonable prospect of reaching a verdict. Under these circumstances, Justice Allen had every reason to believe that requiring further deliberation would allow the jury to reach a verdict within a reasonable period of time. The First and Second Departments of the Appellate Division have repeatedly found that trial courts have acted within their discretion in declining to declare a mistrial at such a juncture. See, e.g., People v. Stephens, 63 A.D.3d 624 (1st Dept.), lv. denied 13 N.Y.3d 800 (2009) (trial court “properly exercised its discretion in denying defendant’s motion for a mistrial and instead delivering an appropriate supplemental charge” because “[a]lthough the trial was short, the jury had not been deliberating for such an extensive period that further deliberations would not be fruitful” and “the wording of the jury’s note was not indicative of a deadlock”); -42- People v. Petty, 282 A.D.2d 551 (2d Dept. 2001) (trial court “providently exercised its discretion” in deciding “to give a second Allen charge”); People v. Goode, 270 A.D.2d 144 (1st Dept. 2000) (“[t]he court properly refused to declare a mistrial during jury deliberations where the jury had been deliberating for less than two days and repeatedly requested reinstruction on the elements of the crimes charged”); People v. Cortez, 242 A.D.2d 338 (2d Dept. 1997) (trial court did not abuse discretion in giving second and third Allen charges). By contrast, defendant’s citations to Plummer, 63 N.Y.2d 243 (1984), and People v. Cheeseborough, 158 A.D.2d 534, 551 (2d Dept. 1990) (Defendant’s Brief at 36, 40-41), are inapposite. As an initial matter, Plummer and Cheeseborough simply held that the judges in those cases did not abuse their discretion by granting mistrials. See Plummer, 63 N.Y.2d at 251 (“it cannot be said that the jury’s deliberation . . . was per se insufficient as a matter of law”); Cheeseborough, 158 A.D.2d at 535 (“[T]he trial court did not improvidently exercise its discretion in declaring a mistrial”). That does not imply that the judges in those cases would have erred by instead making the discretionary determination to continue deliberations. See generally People v. Dorm, 12 N.Y.3d 16, 19 (2009). In any case, Plummer was a “simple” case that “require[d] the resolution of [only] one factual issue . . . the credibility of the complainant.” Plummer, 63 N.Y.2d at 251. Cheeseborough, similarly, involved a “short” trial “free from complex legal intricacies.” Cheeseborough, 158 A.D.2d at 535. By contrast, in this case, the jurors had to consider witness credibility, defendant’s identification -43- defense, and defendant’s claim that he moved Roberts’ bag pursuant to Mundo’s instructions. Defendant also cites People v. Reed, 230 A.D.2d 866 (2d Dept. 1996), and People v. Sheldon, 136 A.D.2d 761 (3d Dept. 1988), to support his argument that the court should have declared a mistrial (Defendant’s Brief at 40-41). Reed is not analogous, however, because in that case, the court gave multiple Allen charges -- to the jury and to an individual juror -- despite the jury’s repeated notes stating that it was “hopelessly deadlocked.” Reed, 230 A.D.2d at 867. Similarly, Sheldon is distinguishable because the jury in that case repeatedly told the court that it was “deadlock[ed]” and that “[n]o one seems to indicate they will change their vote.” Sheldon, 136 A.D.2d at 762-63. In the instant case, by contrast, there was no indication from the jury that it was “hopelessly deadlocked”; instead, it simply indicated that it had not yet been able to reach a verdict. Thus, the court properly exercised its discretion by again declining to declare a mistrial and instead delivering a full Allen charge. The court provided the guidance that the jurors clearly needed, explaining that it was “our hope that the jury will reach a verdict” (DL: A215). Justice Allen quickly emphasized, however, that no juror should “agree on a verdict” that he or she “did not consider to be a just verdict” (DL: A215). Having clearly set forth the boundaries in that way, the court gave the jurors some practical assistance about how best to achieve productive deliberations. The court reminded the jurors that they had taken a “solemn oath to be fair and impartial” -44- and that it was their “sworn duty [ ] to follow all legal instructions scrupulously” (DL: A215-16). The court also emphasized that jury members must “put aside all passion, all prejudice, all bias, and all questions of punishment in reaching your verdict” (DL: A216). The court then advised the jury to “review the pertinent evidence once again” and to “listen closely to the positions of your fellow jurors . . . It may be that another juror has an argument . . . which you did not think of” (DL: A216). Finally, the judge stressed that he was “not saying” that the jury “must reach a verdict” (DL: A216). Plainly, there was no chance that the court’s second Allen charge “sent a message to the jurors that they would not be released without rendering a decision” and “coerced the verdict against [defendant]” (Defendant’s Brief at 39-40). The language that the court used was well-chosen not only to encourage the jurors in their process of deliberations, but also to make clear that a juror could not simply acquiesce to the will of the majority, as well as to reassure the jury that being unable to deliver a verdict was an acceptable option. The court’s instructions were balanced, and they carefully avoided any language that might have been regarded by the jury as coercive. Compare Pagan, 45 N.Y.2d at 726 (finding that charge was not “impermissibly coercive” where the judge stated that “the Jury is expected to come to a verdict” but added that “sometimes a Jury can’t reach a verdict”); with People v. Aleman, 12 N.Y.3d 806, 807 (2009) (court improperly responded to deadlock note by “chid[ing] the jury for not ‘following the rules’ and impl[ying] that certain jurors had violated their promise [to] comply with the court’s instructions on the law,” which created a -45- risk that jurors would interpret instructions as a direction to reach a verdict at all costs); and Aponte, 2 N.Y.3d at 308 (charge overemphasized the jury’s obligation to return a verdict where court told jury, inter alia, that “[t]he point of this process is to get a result,” but failed to advise jurors not to surrender conscientiously held belief). That the jury was not coerced by the court’s decision to give the Allen charge is also evident from the fact that the jury deliberated for three more hours following the charge. Moreover, during that period, asked the court to play “the video of defendant taking/removing the content of the purse” (Court Exhibit VIII). Compare People v. Bonilla, 225 A.D.2d 330 (1st Dept. 1996) (Allen charge “clearly” not coercive because the jury “continued deliberations for some time following delivery of the Allen charge, and sent two additional notes requesting further readback of testimony and charge material before rendering a verdict”); with Aponte, 2 N.Y.3d at 309 (coercive nature of Allen charge demonstrated by, inter alia, the fact that the jury “returned a verdict of guilty only five minutes after the supplemental instruction was given”). Finally, defendant advances two unpreserved arguments in support of his claim that the verdict was coerced. First, defendant points to the judge’s remark, at the end of deliberations on the day of the first note in question, that he saw some “unhappy faces out there” (Deliberations: A207-08). He asserts that the court failed to appreciate the “clear frustration” the jurors expressed when they were told that they would have to return for another day of deliberation, as well as the “negative impact” this frustration would have on their “ability to reach an uncoerced verdict” -46- (Defendant’s Brief at 41-42). However, at trial, defendant never said anything of the sort: he never even remarked on the supposedly “clear” frustration of the jurors, much less suggested that that was a new factor that mandated declaring a mistrial or any other relief. Accordingly, as the Appellate Division held, this claim is unpreserved. Hardy, 115 A.D.3d at 512 (A3); see CPL 470.05(2); see generally People v. Weston, 56 N.Y.2d 844, 846 (1982) (“If defendant believed that he was prejudiced by” the alleged error, “it was necessary that he move for a mistrial on this specific ground in order to preserve the issue for appellate review”). In any case, as the Appellate Division further found, defendant’s argument is “unavailing.” Hardy, 115 A.D.3d at 512 (A3). Irritation or unhappiness on the jury’s part concerning their continued need for service could hardly be grounds for a mistrial, for most jurors are unhappy at the prospect of jury service in the first place. Rather, the relevant inquiry is whether the court had reason to believe that further deliberations would not produce a unanimous verdict or would coerce a verdict. Nor did Justice Allen's comment to the jurors the next day -- “Dare I say, welcome back” (Deliberations: A211) -- “suggest[ ] that the court did not factor the jury’s expressed discontent into its decision” (Defendant’s Brief at 42). Defendant reads far too much into the court’s comments, which were simply intended to diffuse the jury’s frustrations by acknowledging the burden of jury service. Next, defendant asserts that the jury was coerced into returning a guilty verdict because the court extended deliberations slightly past the courthouse’s 4:30 p.m. -47- closing time (Defendant’s Brief at 42). However, defendant never argued below that the court should have stopped proceedings at 4:30 p.m. or that the jury’s verdict was coerced because it had deliberated until 4:34 p.m. To the contrary, when the court notified defendant that the jury had reached a verdict, he did not comment except for affirming that he was “ready for the jury” (Verdict: A207). Accordingly, as the Appellate Division held, defendant’s claim is unpreserved. Hardy, 115 A.D.3d at 512 (A3); see CPL 470.05(2); see generally Weston, 56 N.Y.2d at 846. In any event, here too the Appellate Division was right to conclude that defendant’s claim is “unavailing.” Hardy, 115 A.D.3d at 512 (A3). First, the court had every indication that the jury’s deliberations were still productive and thus had no reason to simply cut off deliberations. After all, following the jury’s second note indicating that it had not reached a unanimous decision, the jury had deliberated for three more hours, requested a playback of the surveillance footage (Court Exhibit VIII [A233]), and did not again report that it was unable to come to a verdict. In fact, the jury’s awareness of the court’s 4:30 p.m. closing time indicates that the jury reached its decision voluntarily. The jurors knew that there was no requirement that they “must reach a verdict” and that they were not to compromise their “conscientiously held individual opinion[s]” (DL: A215-16). In addition, the jury was clearly comfortable with reporting to the court that they were unable to come to a unanimous decision, having done so twice already (Court Exhibit V, VII [A230, 232]). Therefore, had the jurors been deadlocked prior to the court’s closing, they would -48- have reported as much to the court. That the jurors continued deliberating indicates that they were close to reaching a unanimous decision and did not want to wait until the following day to report its decision. Moreover, the jury obviously was not under the impression that they would be kept in the courthouse if they did not report a verdict; after all, they had been sent home the two prior nights. * * * In sum, the trial judge appropriately exercised his discretion by declining to declare a mistrial upon receipt of notes stating that the jury had not yet reached a unanimous verdict. Moreover, the supplemental instructions provided by Justice Allen, the contents of which defendant has never challenged, ensured that the jury was not coerced into reaching its guilty verdict. -49- CONCLUSION The order of the Appellate Division should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County BY: MANU K. BALACHANDRAN Assistant District Attorney ALAN GADLIN MANU K. BALACHANDRAN Assistant District Attorneys Of Counsel January 30, 2015 -50- PRINTING SPECIFICATIONS STATEMENT The word count for this brief is 12647, excluding the Table of Contents and Table of Authorities. The word processing system used to prepare this brief and to calculate the word count was Microsoft Word 2013. The brief is printed in Garamond, a serifed, proportionally spaced typeface. The type size is 14 points in the text and headings, and 13 points in the footnotes.