author: Abdus-Salaam, J. Rivera, J.

text:
    [43 NE3d 350, 22 NYS3d 140]
    The People of the State of New York, Respondent, v Rhian Taylor, Appellant.
    Argued September 10, 2015;
    decided October 27, 2015

      POINTS OF COUNSEL

      Law Offices of Joel B. Rudin, P.C., New York City (Joel B. Rudin and Steven R. Aquino of counsel), for appellant.
    I. A trial court has no “discretion” to unilaterally construe an inherently ambiguous jury note as “ministerial” without according the defendant his fundamental constitutional rights to notice, presence, and the opportunity to be heard. (People v Walston, 23 NY3d 986; People v O’Rama, 78 NY2d 270; Rogers v United States, 422 US 35; Snyder v Massachusetts, 291 US 97; People v Kisoon, 8 NY3d 129; People v Harris, 76 NY2d 810; People v Ochoa, 14 NY3d 180; People v Lykes, 81 NY2d 767.) II. By refusing to provide the jury with all of the evidence of the benefits the People’s witnesses received in exchange for their testimony, and instead incorrectly instructing the jury that only one witness’s written cooperation agreement was “in evidence,” the court violated Rhian Taylor’s fundamental right to a meaningful response to the jury note. (People v Crimmins, 36 NY2d 230; People v Malloy, 55 NY2d 296; People v Gonzalez, 293 NY 259; Boyde v California, 494 US 370; People v Brown, 87 NY2d 950; People v Owens, 69 NY2d 585; People v Harrison, 35 AD3d 52; People v Lewis, 160 AD2d 815; People v Lourido, 70 NY2d 428; People v Novoa, 70 NY2d 490.)

      Richard A. Brown, District Attorney, Kew Gardens (Sharon Y. Brodt, John M. Castellano and Laura T. Ross of counsel), for respondent.
    I. Defendant’s claim that automatic reversal was required for the failure to provide adequate notice of the jury’s fourth note fails both because the note constituted a ministerial request not requiring notice and because the court in any event disclosed the entire contents of the note in time for any error to be cured. (People v O’Rama, 78 NY2d 270; People v Damiano, 87 NY2d 477; People v Ochoa, 14 NY3d 180; People v Lykes, 81 NY2d 767; People v Kadarko, 14 NY3d 426; People v Collins, 99 NY2d 14; People v Jackson, 105 AD3d 607; People v Green, 82 AD3d 593; People v Griffin, 241 AD2d 501; People v Davis, 260 AD2d 726.) II. The court provided a meaningful response to the jury’s note. (People v Liccione, 50 NY2d 850; People v Almodovar, 62 NY2d 126; People v Malloy, 55 NY2d 296; People v Steinberg, 79 NY2d 673; People v Chase, 225 AD2d 789; People v Ross, 205 AD2d 646; People v Rodriguez, 228 AD2d 391; People v Brown, 87 NY2d 950; People v Owens, 69 NY2d 585; People v Harrison, 35 AD3d 52.)
   OPINION OF THE COURT

Abdus-Salaam, J.

The dispositive issue on this appeal is whether a trial court abuses its discretion and commits reversible error when, in response to a request from a deliberating jury, it does not provide the jury with a substantial portion of requested evidence regarding the potential bias of key prosecution witnesses and then suggests to the jury that there is no other evidence relevant to its inquiry. Under the circumstances of this case, we hold that the trial court abused its discretion in taking such actions, necessitating reversal of defendant’s convictions.

L

Based on his alleged shooting of Wayne Peacock and Darion Brown, which resulted in Brown’s death, defendant Rhian Taylor was indicted and tried on charges of murder in the second degree (see Penal Law § 125.25 [1]), attempted murder in the second degree (see Penal Law §§ 110.00; 125.25 [1]), assault in the first degree (see Penal Law § 120.10 [1]), assault in the second degree (see Penal Law § 120.05), reckless endangerment in the first degree (see Penal Law § 120.25) and two counts of criminal possession of a weapon in the second degree (see Penal Law § 265.03 [1] [b]; [3]). According to the People’s proof at trial, the shooting occurred during a dispute outside the location of a party in Queens.

Specifically, on the night of August 10, 2007, Brown drove Peacock, as well as their friends Seprel Turner and Anthony Hilton, to the site of the festivities. Upon their arrival and while they remained in the car, Brown tried to flirt with a friend of Hilton’s, despite Hilton’s admonition not to do so. A man, whom Turner and Hilton later identified as defendant, purportedly took offense at Brown’s actions and shot into the car, striking Brown repeatedly in the torso. One shot also hit Peacock, who immediately woke from a nap in the passenger seat and hence did not see the shooter’s face. Brown frantically drove away but soon hit a nearby pole, and he was knocked unconscious. Peacock, Turner and Hilton scattered. Turner and Hilton then met up at Turner’s house. About 10 minutes later, Hilton and Turner returned to the scene of the shooting, and although the police had already arrived, the men did not speak to the officers. The officers retrieved Brown from the car, and he was rushed to the hospital, where he died.

Within a couple of days, Peacock led the police to Turner, who was shown a photo array and identified defendant as the shooter. Acting on this identification, the police searched for defendant, who eventually surrendered. On August 14, Turner identified defendant in a lineup. Meanwhile, Hilton learned that the police were looking for him, and he decided to speak to them; in Hilton’s telling, “[b]ecause they w[ere] riding around [the] neighborhood with [his] picture” and he was “going to court for a case,” he “felt [he] needed to take care of it.” Hilton informed the police of his observations of the crime, and he identified defendant in a photo array as the perpetrator.

Months later, in 2008, Hilton was arrested on unrelated charges. Because Hilton was already on probation in connection with another criminal matter, he was charged with violating his probation. When Hilton appeared in court to answer the specifications of a probation violation, the prosecutor who handled the instant case also attended that court appearance and requested that no bail be set in Hilton’s case. In August 2009, Hilton pleaded guilty to the violation without any negotiated plea. The court returned Hilton to a five-year term of probation. While he continued serving his probation term, Hilton shoplifted a scarf from a store, leading to his arrest and eventual conviction on a charge of criminal possession of stolen property. Hilton also had prior convictions for menacing and disorderly conduct.

As for Turner, over a year after the shooting, in late 2009, he was arrested for unlawfully possessing a weapon. Thereafter, the People and Turner negotiated a plea agreement, under which Turner would plead guilty to criminal possession of a weapon in the second degree, a felony, and to criminal possession of a weapon in the fourth degree, a misdemeanor, and if he testified truthfully at defendant’s trial, the felony charge would be dismissed and Turner could replead to the misdemeanor charge, resulting in a purely probationary sentence. On February 25, 2010, Turner pleaded guilty to the aforementioned charges and executed a written cooperation agreement memorializing the bargain.

At trial, Turner acknowledged that he would obtain other benefits as a natural consequence of the deal. For example, by receiving only a misdemeanor conviction, he could not be sentenced as a second felony offender on any future crime that he might commit. And, Turner, who was pursuing a career as a rap artist, would avoid incarceration, thereby ensuring that he would not jeopardize his recently signed contract with a record label due to imprisonment. As previously noted, Turner and Hilton were the only witnesses who identified defendant as the man who shot Brown and Peacock.

After the presentation of proof of the foregoing facts at trial, the parties presented their summation arguments. In his summation, defense counsel argued that Hilton and Turner had been motivated to testify falsely against defendant, and in addition to the People’s written cooperation agreement with Turner, counsel cited Turner’s testimony about the additional benefits he would naturally receive from his plea and Hilton’s testimony about the People’s intervention at his probation hearing as proof of the witnesses’ bias in favor of the People. Counsel also argued that Hilton had a motive to kill Brown out of jealousy over Brown’s flirtation with Hilton’s friend, and counsel denounced Turner and Hilton as untrustworthy criminals whose testimony should be discounted. In her summation, the prosecutor countered that the only material benefits which Turner had received were those set forth in the cooperation agreement, and she insisted that the People’s advocacy for Hilton’s release without bail in his case did not give Hilton a motive to testify favorably to the People in this case.

Prior to the start of the jury’s deliberations, the parties agreed that the court could submit any exhibits in evidence to the jury upon request without having to reconvene the parties and the jury in open court. The next day, the deliberations commenced, and before any proceedings occurred in open court, the jury issued three notes. The first note said, “We would like to see all the People’s exhibits of the car inside, outside, and the scene in evidence collected.” The second note said, “We would like to see two photo arrays. We would also like a sketch of the scene.” The third note stated, “We would like a readback of Anthony Hilton’s testimony and S. Turner’s testimony with regard to their stories about being in the car prior to and up to just after the shooting.” When proceedings resumed on the record, the court read the three notes to the parties and explained that the first two had already been “complied with pursuant to [the parties’] agreement.” With respect to the third note requesting a readback of Hilton’s and Turner’s testimony, the court announced that it was ready to respond with the read-back. The parties did not object to the court’s responses to the notes, either as previously delivered or proposed, and the court had the testimony requested in the third note read to the jury.

The next day, prior to the start of proceedings on the record, the jury issued its fourth and fifth notes. The fourth note declared, “[W]e would like to see the benefits offered to Mr. Hilton and Mr. Turner, please.” The fifth note stated, “We would like to have definition of reasonable doubt.” In response to the fourth note asking to see the benefits offered to the witnesses, the court sent the jurors the written cooperation agreement between the People and Turner, without consulting the parties. Thereafter, on the record, the court allowed the parties to inspect the two notes, and it read the contents of the notes aloud.

Defense counsel objected to the court’s response to the fourth note. Counsel essentially asserted that the response was incomplete without a readback of Turner’s and Hilton’s testimony about the benefits they had received outside the context of the written cooperation agreement, such as the career-related and sentencing benefits to Turner and the pretrial release obtained by Hilton in his probation matter. The court replied that the jurors “didn’t ask for that” and had “gotten the agreement,” adding, “If they want anything more I’ll be there to listen.” When the court returned the jurors to the courtroom, it said, “I believe we sent in to you the cooperation agreement with Mr. Turner. That’s what is in evidence.” Next, the court proceeded to answer the fifth note, stated, “We will be here if you need anything,” and sent the jurors back to the jury room.

Outside the presence of the jury, the court told defense counsel that its comments had accurately indicated to the jurors that they had received only an agreement between the People and Turner in response to their request and that they could ask for additional materials if they so desired. Referring to the court’s statement to the jury about “what [was] in evidence,” counsel responded by suggesting that this statement had been inaccurate because the written cooperation agreement did not represent the entirety of the evidence of the witnesses’ benefits. Counsel reiterated his belief that the jurors had wanted to receive all evidence of benefits conferred upon both witnesses, including the testimony about the benefits not memorialized in the cooperation agreement. The court rejected counsel’s arguments, deciding that the jurors’ use of the term “see” in the fourth note revealed their desire to receive only evidence that could be visually inspected, i.e., the written cooperation agreement.

Following the contested fourth note, deliberations continued for just over two more days, and the jury issued, and the court answered, several more notes, including one stating that the jury was deadlocked. Finally, on the fifth day of deliberations, the jury rendered a verdict convicting defendant of second-degree murder, second-degree assault, two counts of second-degree weapons possession and first-degree reckless endangerment. After post-verdict proceedings not relevant to the disposition of this appeal, the court sentenced defendant to an aggregate prison term of 20 years to life, to be followed by five years of postrelease supervision, and defendant appealed.

The Appellate Division unanimously affirmed defendant’s convictions (see People v Taylor, 120 AD3d 842, 842-843 [2d Dept 2014]). As relevant here, the Appellate Division rejected defendant’s contention that the trial court had improperly responded to the fourth jury note by failing to read back Turner’s and Hilton’s testimony about the benefits they received in other cases based on their aid to the People in defendant’s case (see id. at 842-843). Essentially adopting the trial court’s reasoning, the Appellate Division declared,

“While it may have been preferable for the court to seek further clarification from the jury with respect to its request to ‘see the benefits,’ the wording of the subject jury note, particularly when read in conjunction with several other notes, demonstrated that the jury was requesting only the physical exhibit,” and therefore the court’s “response did not fall outside the acceptable bounds of its discretion, and thus satisfied the requirement of CPL 310.30” {id. [citations omitted]).

A Judge of this Court granted defendant leave to appeal, and we now reverse (24 NY3d 1089 [2014]).

IL

CPL 310.30 provides that, “[u]pon such a request” for evidence or legal instruction from a deliberating jury, “the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper.” Similarly, absent a withdrawal of the jury’s inquiry or similar circumstances, common-law principles of procedural fairness generally require the court to furnish the jury with information requested during its deliberations, and the court has significant discretion in determining the proper scope and nature of the response (see People v Gonzalez, 293 NY 259, 262-263 [1944] [“The general rule in the United States is that ‘the court may and ordinarily should give the jurors additional instructions on their request’ ”], quoting 23 CJS, Criminal Law § 1376 [c] at 1046 [1940]; see also People v Malloy, 55 NY2d 296, 302-303 [1982]). Thus, regardless of whether the issue is framed under CPL 310.30 or common-law rules governing jury deliberations, where, as here, the defendant has preserved for our review a specific objection to the contents of the trial court’s response to a jury note, we must determine whether the trial court acted within the bounds of its discretion in fashioning an answer to the jury’s inquiry (see Malloy, 55 NY2d at 302; see also People v Cooke, 292 NY 185, 188 [1944] [noting that, under a pre-CPL 310.30 statute, which reflected to some extent the common law, not every refusal to answer the jury in a particular manner constituted reversible error]). In determining whether the trial court abused its discretion and committed reversible error, “[t]he factors to be evaluated are the form of the jury’s question, which may have to be clarified before it can be answered, the particular issue of which inquiry is made, the [information] actually given and the presence or absence of prejudice to the defendant” (Malloy, 55 NY2d at 302; see People v Steinberg, 79 NY2d 673, 684 [1992]).

In this case, an evaluation of those factors demonstrates that the trial court abused its discretion by declining to provide the jurors with information that they plainly wanted and incorrectly characterizing the state of the evidence on the subject of their inquiry. In that regard, the form of the jury’s request in the fourth note showed that the jury wished to review all evidence of the benefits which Hilton and Turner acquired as a result of their assistance in the prosecution of defendant. Because the jurors asked to see the benefits offered to “Mr. Hilton and Mr. Turner” (emphasis added), the form of their inquiry reflected their desire to examine the evidence of benefits conferred upon both witnesses, and that evidence necessarily included both the written cooperation agreement between the People and Turner and the witnesses’ testimony about the advantages of their cooperation with the People.

Contrary to the trial court’s supposition, the jury could not have desired exclusively to receive the written cooperation agreement, as that agreement did not provide any benefits to Hilton and simply memorialized a portion of the benefits received by Turner. Given the jury’s entreaty for all proof of Turner’s and Hilton’s gains related to their assistance in the prosecution of defendant, the court should have supplied the jurors not only with the cooperation agreement, but also with: Turner’s testimony that the cooperation agreement’s provision for a non-prison sentence enabled him to keep a potentially lucrative recording deal; his testimony that his plea to a misdemeanor allowed him to avoid receiving a predicate felony offender adjudication on any future conviction; and Hilton’s testimony that the trial prosecutor in defendant’s case spared him from having to post bail in his probation proceeding.

Although, as the trial court noted, the jurors’ expressed wish “to see” the pertinent evidence might have implied a desire solely to view an exhibit, this single phrase did not undermine the note’s otherwise clear request for the entirety of the evidence of benefits conferred upon Turner and Hilton, especially in light of the context in which the note was issued. Notably, in their summations, both parties disputed the extent to which the written cooperation agreement and the witnesses’ testimony on the subject of benefits reflected the witnesses’ motives to testify in favor of the People, thereby drawing the jurors’ attention to all of that evidence in a manner that would naturally prompt them to request that proof in its entirety. More importantly, prior to the issuance of the fourth note, the jurors had expressed their desire to visually inspect physical exhibits by specifically referring to particular physical objects, such as “photo arrays,” “sketches]” or “exhibits,” and therefore, had the jurors wanted to receive only the written cooperation agreement in reply to their fourth note, they presumably would have asked to see “the agreement” or “the exhibit” setting forth the benefits to Turner. Instead, the jurors framed their request in terms of evidence of “the benefits” offered to the witnesses, period, without limiting the inquiry to an “exhibit” or physical object. Given the clear meaning of the note in context, the court improperly focused on the phrase “to see” in disregard of the remaining contents of the note and then proceeded to submit only the cooperation agreement to the jurors (cf. People v Lykes, 81 NY2d 767, 770 [1993] [approving the trial court’s handling of a jury note in part because the court “did not limit or channel the jury’s question”]). The court should have at least inquired as to whether the note in fact meant what its terms and the surrounding circumstances overwhelmingly suggested.

In addition, since the issue about which the jury inquired, namely the People’s favorable treatment of Turner and Hilton, was essential to the jury’s ability to judge the credibility of the sole witnesses to identify defendant as Brown’s killer and Peacock’s assailant, the court’s inadequate response to the jury’s query on that central issue further reflected the court’s abuse of its discretion. Given the lack of any other testimony or physical evidence that defendant was the shooter, Hilton’s and Turner’s credibility became the key issue at trial, and in light of the witnesses’ respective criminal pasts, the truthfulness of their testimony was subject to serious dispute, calling for particular care in fashioning a fair and complete response to the jurors’ inquiry into the matter. In addition to the written cooperation agreement, the other evidence sought by the jurors had an especially strong bearing on the witnesses’ credibility. Indeed, because the requested testimony showed that the trial prosecutor had helped Hilton to win pretrial release in another case, this testimony suggested that Hilton had a motive to testify falsely in favor of the prosecution at defendant’s trial out of gratitude for the prosecutor’s aid. Likewise, Turner’s testimony that his cooperation with the People enabled him to avoid imprisonment, prevent future adverse sentencing adjudications and continue making a living showed that he had a motive to give false testimony against defendant in order to reap those rewards. That being so, the court abused its discretion by withholding a highly significant portion of what the jury had asked for regarding an essential issue at trial (see generally People v Lourido, 70 NY2d 428, 435 [1987]; cf. People v Mercado, 91 NY2d 960, 963 [1998]).

Moreover, after the court failed to supply the jurors with the full extent of the requested evidence, the court made comments suggesting that the remainder of the sought-after proof did not exist, and the combination of the court’s failure to give the jury necessary information and its inaccurate follow-up remarks prejudiced the defense. Specifically, when the court told the jurors that the written cooperation agreement between the People and Turner was “what [was] in evidence” in relation to their note, the court incorrectly indicated that there was no evidence, other than the agreement, regarding benefits received by Hilton and Turner, even though testimony about such benefits did in fact exist. Based on this statement, the jurors may have erroneously believed that either their recollection of the existence of such evidence was faulty or the testimony they had sought was irrevelant, prompting them to cease their inquiry into this important evidence based on false assumptions. Since the People’s proof of defendant’s identity as the shooter was less than overwhelming and the court’s response to the note seriously inadequate, the court abused its discretion as a matter of law, and reversal is required.

In reaching this conclusion, we do not signal any erosion of a trial court’s discretion in answering jury notes. In acting within the bounds of discretion delineated by People v Malloy (55 NY2d 296) and similar cases, a trial court retains leeway to shape its response to the jurors’ inquiry based on the record as a whole and the applicable law, and if the court entertains some doubt as to the meaning of a jury note, it can and should seek clarification from the jury (see Lykes, 81 NY2d at 769-770). Additionally, if some of the circumstances here were to arise in isolation in other cases, they might not support the conclusion that the trial court abused its discretion in answering a note, for no single factor is dispositive. Thus, we go no further than to hold that, under the totality of the circumstances in this case, the trial court abused its discretion as a matter of law by failing to adequately answer the jurors’ fourth note and creating a false impression of the nature of the evidence.

Ill

Because defendant’s challenge to the substance of the trial court’s response to the jury’s fourth note mandates reversal of his convictions, we need not decide whether the court committed a mode of proceedings error by revealing the contents of the fourth note to the parties only after it had sent the cooperation agreement to the jury, and we express no opinion on that matter. For the same reason, we need not address defendant’s remaining contentions. Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Rivera, J.

(concurring). I concur in the result only, and agree with the majority that defendant’s convictions must be reversed, but on different grounds. Moreover, because I find the majority’s analysis an unnecessary and overly broad reading of our case law on the proper handling of jury requests, I decline to join its interpretation of the legal requirements set by this Court in this area.

In People v O’Rama (78 NY2d 270, 276-277 [1991]), this Court held that CPL 310.30 imposes on a court the duty to notify counsel of a substantive juror inquiry, and the duty to meaningfully respond to the jury. In accordance with our interpretation of CPL 310.30, an utter failure to respond cannot be termed “meaningful” in any sense of the word (see People v Lourido, 70 NY2d 428, 435 [1987]). Furthermore, we recently reaffirmed in People v Walston (23 NY3d 986, 989 [2014]) that fulfillment of these duties is a core responsibility of the trial court. Thus, the court’s failure to fulfil these responsibilities constitutes a mode of proceedings error, which does not require preservation (id.; People v Alcide, 21 NY3d 687, 692 [2013] [a mode of proceedings error will result where a judge fails to afford meaningful response to the jury]). This error also requires reversal and a new trial (People v Roberites, 115 AD3d 1291, 1293 [2014] [court’s failure to provide notice to counsel constituted a mode of proceedings error which requires reversal and a new trial]).

As the majority correctly describes, the jury note expressed the jurors’ desire to review the evidence of the benefits accorded to Anthony Hilton and Seprel Turner, which obliged the court to provide evidence relating to both witnesses. However, the court failed to provide any information at all regarding the benefits granted to Hilton, notwithstanding the existence of testimony in the record readily available to address such a request. Thus, on the facts of this case, the court’s response to the jury’s request to review information relating to Hilton was no response at all, and as such constituted a mode of proceedings error under our O’Rama jurisprudence. That error requires reversal and, therefore, there is no need to consider, as the majority does, whether Supreme Court abused its discretion.

Judges Pigott, Stein and Fahey concur; Judge Rivera concurs in result in a separate opinion in which Chief Judge Lippman concurs.

Order reversed and a new trial ordered.

       Although defendant’s DNA was found on a cigarette filter near several shell casings at the scene of the shooting, this evidence showed that defendant was in close proximity to the shooting and not that he was necessarily the shooter.

       The fact that the inquiries were included in one jury note is irrevelant for purposes of the analysis because a court’s duty to provide a meaningful response for each, request remains unchanged, and a complete failure to reply to any inquiry is error (see People v Stocks, 101 AD3d 1049, 1051 [2d Dept 2012] [finding O’Rama violation where court failed to provide defense counsel with notice of jury note, which contained, in part, a substantive request]; see also People v Brown, 125 AD3d 1550 [4th Dept 2015] [treating one note with multiple requests as separate inquiries and finding no O’Rama violation where defense counsel participated in the formulation of a response to the factual inquiries, and did not preserve for review the court’s response to the part of the note concerning the readback of testimony]; People v Jackson, 105 AD3d 607 [1st Dept 2013] [finding no violation but analyzing different parts of one note separately]).


source: Caselaw Access Project

author: Rivera, J.

license: Public Domain

text:
    [43 NE3d 358, 22 NYS3d 148]
    In the Matter of George Texeira, Appellant, v Brian Fischer, Commissioner, New York State Department of Corrections and Community Supervision, Respondent.
    Argued September 16, 2015;
    decided October 27, 2015

      POINTS OF COUNSEL

      Karen L. Murtagh, Prisoners’ Legal Services of New York, Plattsburgh (Michael E. Cassidy of counsel), for appellant.
    I. The violation of a prisoner’s right to call witnesses at a prison disciplinary hearing mandates reversal and expungement not remittal for a new hearing. (Matter of Alvarez v Goord, 30 AD3d 118; Matter of Barnes v LeFevre, 69 NY2d 649; Matter of Hartje v Coughlin, 70 NY2d 866; Matter of Allah v LeFevre, 132 AD2d 293; Wolff v McDonnell, 418 US 539; Matter of Laureano v Kuhlmann, 75 NY2d 141; Ponte v Real, 471 US 491; Matter of Coleman v Coomhe, 108 AD2d 1018, 65 NY2d 777.) II. Even under the Third Department’s choice of remedy framework, the proper remedy in this case is still expungement and not remittal for a new hearing. (Matter of Alvarez v Goord, 30 AD3d 118; Matter of Hill v Selsky, 19 AD3d 64; Matter of Barnes v LeFevre, 69 NY2d 649; Matter of Johnson v Goord, 247 AD2d 801; Matter of Williams v Coughlin, 145 AD2d 771; Matter of Moulton v Fischer, 100 AD3d 1131; Matter of Torres v Prack, 95 AD3d 1518; Matter of Buari v Fischer, 70 AD3d 1147; Matter of Morris-Hill v Fischer, 104 AD3d 978; Matter of Jamison v Fischer, 78 AD3d 1466.)

      Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet, Barbara D. Underwood and Andrea Oser of counsel), for respondent.
    I. Remittal rather than expungement was proper here even assuming the Third Department’s analytical framework is correct (Matter of Barnes v LeFevre, 69 NY2d 649; Matter of Coleman v Coombe, 65 NY2d 777; Matter of Hartje v Coughlin, 70 NY2d 866; Matter of Alvarez v Goord, 30 AD3d 118; Matter of Allah v LeFevre, 132 AD2d 293; Matter of Cowart v Coughlin, 193 AD2d 887; Matter of Moustakos v Venettozzi, 92 AD3d 992; Wolff v McDonnell, 418 US 539; Matter of Laureano v Kuhlmann, 75 NY2d 141; Silva v Casey, 992 F2d 20.) II. Even if the hearing officer’s error violated petitioner’s due process rights, remittal was nonetheless proper. (Matter of Hartje v Coughlin, 70 NY2d 866; Wolff v McDonnell, 418 US 539; Matter of Laureano v Kuhlmann, 75 NY2d 141; Matter of Tolliver v Fischer, 68 AD3d 884; Matter of Cowart v Coughlin, 193 AD2d 887; Matter of Moustakos v Venettozzi, 92 AD3d 992; Eng v Coughlin, 858 F2d 889; Matter of Vaughn v Orlando, 79 AD3d 1048; Matter of Krall v Selsky, 309 AD2d 1027; People ex rel. Martinez v New York State Bd. of Parole, 56 NY2d 588.)
   OPINION OF THE COURT

Rivera, J.

Petitioner George Texeira successfully challenged a prison disciplinary hearing determination on procedural grounds, based on the hearing officer’s failure to obtain a witness as requested by petitioner. The sole issue on appeal is whether the proper remedy in this case is expungement of the disciplinary disposition from petitioner’s prison records, as he contends, or, as held below, remittal for a new hearing. We agree with the Appellate Division, albeit for different reasons, that remittal for a rehearing was an appropriate remedy based on the specific facts of this case.

Petitioner was charged in a misbehavior report for violating prison disciplinary rules while an inmate at Attica Correctional Facility. At the tier III disciplinary hearing, petitioner pleaded not guilty to all charges and requested several witnesses be called, including another inmate, T. However, T refused to testify, stating on his inmate witness refusal form that “I was never at [U]pstate ever. I came here from [Ajttica!” Petitioner asked the hearing officer to recontact T because his response indicated that he was confused about the location of the incident, which had occurred at Attica. The hearing officer agreed to have T re-interviewed. However, when the hearing reconvened T did not testify and the hearing officer did not state whether T had been recontacted, and, if so, what he had said regarding the request to testify. The hearing officer, thereafter, found petitioner guilty of all charges, and respondent, the then Commissioner of the Department of Corrections and Community Supervision (DOCCS), administratively affirmed this disposition.

Petitioner commenced a CPLR article 78 proceeding, claiming that his constitutional right to call witnesses was violated for failure to make reasonable efforts to contact the witness, and requesting that the determination be expunged from his prison records. Supreme Court granted petitioner’s article 78 petition, annulled the determination, and remitted the matter for a new hearing. Petitioner appealed the denial of his request for expungement. The Appellate Division affirmed, concluding that annulment and remittal for a new hearing was the appropriate remedy (115 AD3d 1137 [3d Dept 2014]). According to the Court, because the hearing officer had made some effort to obtain the witness, and did not initially deny the witness outright without a stated good faith reason, respondent only violated petitioner’s regulatory right, thus warranting a new hearing.

Petitioner appeals, claiming that expungement is the exclusive remedy for violation of an inmate’s right to call a witness at a prison disciplinary hearing. For the reasons discussed below we need not reach that issue because under the facts of this case, a rehearing was appropriately ordered.

The United States Supreme Court in Wolff v McDonnell (418 US 539 [1974]) held that inmates retain rights under the Federal Due Process Clause and are entitled to the minimum requirements for procedural due process, although those rights are subject to restrictions due to the nature of incarceration (id. at 556-558). Those minimal due process requirements include an inmate’s right in a disciplinary proceeding to call witnesses in the inmate’s defense, so long as “permitting [the inmate] to do so will not be unduly hazardous to institutional safety or correctional goals” (id. at 566). While noting its usefulness, the Supreme Court did not require that prison officials “state [their] reason for refusing to call a witness, whether it be for irrelevance, lack of necessity, or the hazards presented in individual cases” (id.).

The right to call witnesses is codified in DOCCS regulations, which also provide additional protections above and beyond those minimum requirements for procedural due process recognized by the United States Supreme Court (see 7 NYCRR 254.5). For example, and as relevant to this appeal, section 254.5 (a) states that an inmate may call a witness if the testimony is

“material, is not redundant, and doing so does not jeopardize institutional safety or correctional goals. If permission to call a witness is denied, the hearing officer shall give the inmate a written statement stating the reasons for the denial, including the specific threat to institutional safety or correctional goals presented.”

This requirement that DOCCS provide a written statement explaining the reasons for the denial, a demand not mandated by Wolff, makes it possible to satisfy Wolff and yet not comply with the regulations. It also allows for the possibility that the facts of a case will not easily reveal the nature of the alleged violation. We are faced with just such a situation in this case.

Under Wolff, refusal to provide a witness is not an automatic due process violation because DOCCS retains the right to deny any witnesses that would be “unduly hazardous to institutional safety or correctional goals” (Wolff, 418 US at 566). This Court has previously cured violations of inmates’ rights through ex-pungement (see Matter of Barnes v LeFevre, 69 NY2d 649, 650 [1986]). Here, the record is unclear as to whether respondent violated petitioner’s constitutionally protected due process rights. However, the record is clear that respondent failed to comply with 7 NYCRR 254.5. In accordance with that provision, the hearing officer had an obligation to provide written notice of whether petitioner’s request for a witness had been denied and why. No such written statement was provided.

We are mindful that in this case there is a possible convergence of the constitutional and regulatory commands, as well as the proper remedy, but under these circumstances, where respondent clearly violated the regulation, but where the Court cannot determine if respondent violated the due process requirements of Wolff, we are unpersuaded that any interplay between section 254.5 and the Federal Constitution mandates expungement. Accordingly, the order of the Appellate Division, insofar as appealed from, should be affirmed, without costs.

Chief Judge Lippman and Judges Pigott, Abdus-Salaam and Fahey concur; Judge Stein taking no part.

Order, insofar as appealed from, affirmed, without costs.

      . Specifically 100.10 (assault on an inmate), 114.10 (smuggling), 102.10 (threats), 111.10 (impersonation), 121.12 (phone program violation), 121.14 (exchanging PINs), and 180.11 (facility correspondence violation) (7 NYCRR 270.2 [B]).

      2. “Upstate” refers to the Upstate Correctional Facility in Malone, New York.

      . Petitioner never sought to stay a new hearing. Accordingly, during the pendency of his appeal a new hearing was held. At that hearing, T testified and petitioner was found guilty. Petitioner did not appeal the disposition of the rehearing.


author: Stein, J.

text:
    [43 NE3d 728, 22 NYS3d 371]
    The People of the State of New York, Respondent, v Daniel Israel, Appellant.
    Argued October 21, 2015;
    decided November 18, 2015

      POINTS OF COUNSEL

      Robert S. Dean, Center for Appellate Litigation, New York City (Jan Hoth of counsel), for appellant.
    The court erred in admitting rebuttal evidence of appellant’s alleged prior and subsequent violent acts where that evidence had no direct or logical tendency to rebut his extreme emotional disturbance defense, had no probative value, and was highly prejudicial (US Const Amend XIV; NY Const, art I, § 6). (People v Fiore, 34 NY2d 81; People v Dales, 309 NY 97; People v Molineux, 168 NY 264; People v Santarelli, 49 NY2d 241; People v Cass, 18 NY3d 553; People v Ingram, 71 NY2d 474; People v Rosen, 81 NY2d 237; People v Alvino, 71 NY2d 233; People v Milot, 305 AD2d 729; People v Van Gaasbeck, 189 NY 408.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Deborah L. Morse and Gina Mignola of counsel), for respondent.
    A portion of defendant’s complaint is unpreserved and therefore beyond the review powers of this Court. In any event, all three portions of challenged evidence were admissible because they naturally and logically refuted defendant’s extreme emotional disturbance defense. (People v Santarelli, 49 NY2d 241; People v Cass, 18 NY3d 553; People v Agina, 18 NY3d 600; People v Alvino, 71 NY2d 233; People v Molineux, 168 NY 264; People v Bradley, 20 NY3d 128; People v Hudy, 73 NY2d 40; People v McManus, 67 NY2d 541; People v Barber, 74 NY2d 653; People v Van Gaasbeck, 189 NY 408.)
   OPINION OF THE COURT

Stein, J.

Late one evening in June 2007, defendant happened upon an altercation on a street in Manhattan and saw his friend being chased by several men. As one of those men attempted to hit defendant’s friend, defendant — who was otherwise uninvolved in the events leading up to the dispute — fired a gun multiple times into the group, killing one person and injuring two others. Police officers arriving at the scene of the fight witnessed defendant begin shooting and, upon their approach, defendant fired in their direction before eventually surrendering after he was shot by their return fire. Defendant was subsequently charged with various crimes in connection with the shooting, including two counts of murder in the second degree (Penal Law § 125.25 [1], [2]) and two counts of attempted murder in the first degree (Penal Law §§ 110.00, 125.27 [1] [a] [i]).

Defendant did not contest his identity as the shooter. Rather, at trial, defendant pursued an extreme emotional disturbance defense in an effort to mitigate the degree of his criminal liability in connection with the homicide charges (see Penal Law §§ 125.25 [1] [a]; 125.27 [2] [a]). Defendant attempted to establish that, at the time of the 2007 shooting, he suffered from post-traumatic stress disorder (PTSD) due to an altercation in October 2005 in which he was stabbed eight times in the back during a fight with two individuals. The defense theory was that defendant’s PTSD was triggered by seeing his friend endangered by circumstances arguably similar to those in which defendant had been stabbed, thus causing him to react to the street fight by pulling out his firearm and shooting into the fray.

In support of this defense, Yshande Lucas — a former friend of defendant — testified that, before the 2005 stabbing, defendant was a “[l]oving, caring, [and] gentle” person but, afterward, defendant’s behavior changed in that he started drinking alcohol excessively and became more aggressive. In addition, psychiatrist Stephen Bates Billick opined that the experience of being stabbed numerous times in October 2005 caused defendant to suffer from PTSD, which went untreated and, in Billick’s view, was triggered by the events leading up to the shooting such that defendant was reliving the experience of his stabbing and lacked the intent to commit murder. On cross-examination, Billick testified that defendant was “not a violent person by nature” and “did[ no]t have a . . . significant history of having done violent acts.”

The People sought to rebut defendant’s extreme emotional disturbance defense by demonstrating that his violent actions on the day of the shooting were unrelated to any PTSD diagnosis. To that end, the People sought to cross-examine defendant’s witnesses and introduce testimony regarding, as relevant here, three incidents in which defendant allegedly reacted with physical violence either unprovoked or in response to minor provocation. Through these incidents, the People intended to disprove the assertions of Billick and Lucas that defendant was a calm, peaceful person whose commission of the charged crimes was explainable only through the PTSD diagnosis, by demonstrating that — even before his stabbing in 2005 — defendant had an explosive personality characterized by responding with disproportionate violence.

Specifically, during the cross-examination of Lucas, the prosecutor was allowed to inquire — after informing the court that there was a witness who observed the entire altercation and its precipitating events — whether Lucas had personal knowledge of an incident, in May 2005 (before the stabbing), during which defendant punched a fast-food restaurant employee in front of a police officer after the employee misunderstood his food order. Lucas denied having any personal knowledge of that altercation. The People were also permitted to ask Lucas whether he was aware that, on an occasion in 2002 (also before the stabbing), defendant had “punched” and “choked” a girl who had insulted his mother. Lucas testified that he had “heard” that the girl “said something” and defendant “pushed her” into a wall.

On Billick’s cross-examination, the prosecutor was similarly permitted to inquire whether Billick’s opinion that defendant’s conduct was prompted by PTSD would change if he learned of these two instances of violence occurring before defendant was stabbed. Billick acknowledged that both the 2002 and 2005 altercations involved inappropriately violent reactions, but he testified that the occurrences did not change his stated opinion. He was also asked whether his conclusion that defendant was acting in a PTSD-induced haze at the time of the shooting would be affected if he were to learn that, three years after the shooting and while incarcerated, defendant had shattered an inmate telephone and threatened a correction officer. Billick maintained his opinion, remarking that he saw no “pervasive pattern of violence” in defendant’s actions.

On the People’s rebuttal case, neuropsychologist William Barr testified that there was “no evidence” that defendant was suffering from PTSD or that PTSD influenced his behavior at the time of the shooting. In addition, the People called two witnesses — a police officer and a correction officer — to testify about two of the incidents into which the prosecutor had inquired on cross-examination of defendant’s witnesses. The testimony of the police officer who arrested defendant following the May 2005 incident at the fast-food restaurant revealed that— contrary to the prosecutor’s prior assertion — he lacked personal knowledge of the events preceding that physical altercation; therefore, upon defendant’s objection, the trial court offered to strike the testimony (see generally People v Santarelli, 49 NY2d 241, 250-251 [1980]). Defense counsel chose, instead, to cross-examine the officer, and he elicited testimony establishing the officer’s lack of knowledge of provocation. The People’s next witness, a correction officer, testified that, in August 2010 (three years after the shooting), he observed defendant strike the receiver of an inmate telephone against its base and then throw the telephone to the floor because he “felt like it.” Defendant then cursed at and threatened the officer.

After the close of proof, the court instructed the jury that the testimony regarding defendant’s volatile behavior at times other than the shooting was admitted for a limited purpose, could not be considered as establishing a general criminal propensity, and was to be used only to evaluate the psychiatric testimony and the witnesses’ bases for their testimony as to defendant’s state of mind. Following deliberations, the jury acquitted defendant of one count of attempted murder in the first degree, but rejected his extreme emotional disturbance defense and found him guilty of intentional murder in the second degree and attempted intentional murder in the first degree, as well as the remaining charged crimes. The Appellate Division affirmed (111 AD3d 413 [1st Dept 2013]), a Judge of this Court granted defendant leave to appeal (23 NY3d 1021 [2014]), and we now affirm.

Defendant argues that he was deprived of a fair trial because the testimony elicited regarding the three uncharged bad acts — namely, the 2002, 2005, and 2010 incidents detailed above — should have been excluded. As the People contend, defendant’s challenge to the admissibility of testimony concerning his 2005 assault of a restaurant worker is unpreserved or was waived at trial because defendant rejected the court’s offer to strike the testimony, elected to cross-examine the police officer, and never moved for a mistrial on the ground that the prejudice caused by this evidence was incurable (cf. People v Albert, 85 NY2d 851, 852 [1995]; People v Heide, 84 NY2d 943, 944 [1994]). Therefore, such challenge is not properly before us.

With regard to the propriety of the testimony concerning the other two incidents, “evidence of a defendant’s uncharged crimes or prior misconduct is not admissible if it cannot logically be connected to some specific material issue in the case, and tends only to demonstrate the defendant’s propensity to commit the crime charged” (People v Cass, 18 NY3d 553, 559 [2012]; see People v Alvino, 71 NY2d 233, 241-242 [1987]; People v Molineux, 168 NY 264, 291-293 [1901]). Consequently, “ ‘[w]here . . . the evidence proves only criminal propensity and serves no other function in demonstrating defendant’s guilt of the crime charged, there is no legitimate basis for its admission. No degree of care, in assessing its value and possible prejudice and in giving cautionary instructions, can render it otherwise’ ” (Cass, 18 NY3d at 559, quoting Alvino, 71 NY2d at 253). Where, however, evidence of a defendant’s bad acts or uncharged crimes is “relevant to some material fact in the case, other than the defendant’s propensity to commit the crime charged, it is not to be excluded merely because it shows that the defendant had committed other crimes” (Cass, 18 NY3d at 560).

Evidence of uncharged criminal conduct or bad acts that are probative of a defendant’s state of mind may be admissible if the defendant “opens the door” to such evidence by putting in issue his state of mind at the time of the commission of the charged crime by, for example, raising an extreme emotional disturbance or insanity defense (Cass, 18 NY3d at 563; see Santarelli, 49 NY2d at 248-249; see also People v Bradley, 20 NY3d 128, 133 [2012]). Nevertheless, such a defense opens the door to the People’s rebuttal evidence “only to the extent that [the proffered] evidence has a natural tendency to disprove [the defendant’s] specific claim” (Santarelli, 49 NY2d at 249). That is, evidence of uncharged crimes or bad acts is admissible to rebut an extreme emotional disturbance defense where the evidence has “some ‘logical relationship’ to, and a ‘direct bearing upon,’ the People’s effort to disprove” the defense, and the probative value of the evidence outweighs its prejudicial effect (Cass, 18 NY3d at 562, quoting Santarelli, 49 NY2d at 249, 252; see Bradley, 20 NY3d at 133). Although the balancing of probative value against potential prejudice is a matter that lies within the trial court’s discretion (see People v Morris, 21 NY3d 588, 595 [2013]), “the threshold question of identifying a material issue to which the evidence is relevant poses a question of law” (Cass, 18 NY3d at 560 n 3).

Applying the foregoing, we conclude that the trial court here properly allowed the prosecutor to inquire about the 2002 incident in which defendant reacted with violence to a verbal insult to his mother. The crux of the defense was that defendant, a previously nonviolent person, was suffering from PTSD as a result of the 2005 stabbing incident and that his actions in firing into the group on the street were attributable to his PTSD. By raising this defense and presenting the testimony of Lucas and Billick — both of whom testified regarding defendant’s personality and behavior before the 2005 stabbing as compared with his behavior after that event — defendant “necessarily put[ ] in issue some aspects of his character and personal history” (Santarelli, 49 NY2d at 248). The prosecutor’s inquiries pertaining to the 2002 incident were “directly relevant to the question of defendant’s reaction patterns” because it was an instance in which “defendant had resorted to violence in the face of relatively mild provocation” before the 2005 stabbing occurred (Santarelli, 49 NY2d at 252). This altercation “ha[d] a logical and natural tendency to disprove [defendant’s] specific claim” that he was an otherwise peaceful person who reacted with violence only because his PTSD was triggered by the circumstances in which the shooting took place (Cass, 18 NY3d at 563). In other words, it tended to refute the subjective element of defendant’s defense, i.e., that he actually acted under the influence of PTSD. Moreover, the court’s decision to allow this incident to be explored on cross-examination, rather than through the testimony of a rebuttal witness, was not improper under the facts presented here. Defendant’s direct examinations of Lucas and Billick opened the door to questions about specific acts that undermined their testimony about defendant’s character prior to the 2005 stabbing (see generally People v Kuss, 32 NY2d 436, 443 [1973], cert denied 415 US 913 [1974]), and the People had a good faith basis for their knowledge of the 2002 incident and the provocation involved.

We agree with defendant, however, that reference to the 2010 incident in which he broke an inmate telephone and threatened a correction officer should have been excluded. The key dispute at trial was whether defendant was suffering from PTSD at the time of the shooting and whether, when he fired his weapon, he was acting under the influence of that disorder. Although evidence of defendant’s disproportionately violent reaction to mild provocation prior to the 2005 stabbing was directly relevant to an assessment of the effects of the stabbing on his state of mind and whether he acted out of extreme emotional disturbance when he committed the charged offenses less than two years later, we fail to see the materiality of defendant’s misbehavior while incarcerated three years after the shooting for which he was being tried. This evidence was not probative as it neither tended to prove nor disprove that defendant was acting under the influence of PTSD when he fired his weapon, and it did not advance the People’s efforts to rebut the affirmative defense. Rather, in our view, the testimony pertaining to this incident was relevant only insofar as it related to defendant’s general criminal propensity and, therefore, it should have been excluded (see Bradley, 20 NY3d at 134; Santarelli, 49 NY2d at 251). Nonetheless, the error was harmless — particularly in light of the limiting instructions provided by the trial court — because the proof was overwhelming and there is no significant probability, on this record, that the jury would have acquitted defendant of murder and attempted murder but for the admission of the testimony relating to the 2010 incident (see People v Arafet, 13 NY3d 460, 467 [2009]; People v Crimmins, 36 NY2d 230, 242 [1975]). Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Lippman and Judges Pigott, Rivera, AbdusSalaam and Fahey concur.

Order affirmed.

       A defendant who proves an affirmative defense of extreme emotional disturbance by a preponderance of the evidence may be convicted of manslaughter in the first degree, rather than murder, on the basis that “some homicides are worthy of mitigation because they result from an understandable human response deserving of mercy” (People v Roche, 98 NY2d 70, 75 [2002] [internal quotation marks omitted]; see Penal Law §§ 125.20 [2]; 125.25 [1] [a]; 125.27 [2] [a]). Extreme emotional disturbance is “a mental infirmity not rising to the level of insanity at the time of the homicide, typically manifested by a loss of self-control”; to succeed on that defense, a defendant must prove tbat he or she, subjectively, was acting under the influence of such a disturbance and that, objectively, there was a reasonable explanation or excuse for that disturbance (Roche, 98 NY2d at 75; see People v Cass, 18 NY3d 553, 561 [2012]; People v Diaz, 15 NY3d 40, 45 [2010]).


author: Fahey, J.

text:
    [43 NE3d 734, 22 NYS3d 377]
    The People of the State of New York, Respondent, v Pettis Hardy, Appellant.
    Argued October 14, 2015;
    decided November 18, 2015

      POINTS OF COUNSEL

      Richard M. Greenberg, Office of the Appellate Defender, New York City (Eunice C. Lee of counsel), for appellant.
    I. Where the evidence of larceny against Pettis Hardy was wholly circumstantial, including his alleged statement that he could obtain the stolen property, the trial court erred in denying Mr. Hardy’s request for the pattern circumstantial evidence instruction. (People v Santiago, 22 NY3d 990; People v Silva, 69 NY2d 858; People v Ford, 66 NY2d 428; People v Daddona, 81 NY2d 990; People v Sanchez, 61 NY2d 1022; People v Burke, 96 AD2d 971; People v Tsotselashvili, 135 AD2d 759; Malave v Smith, 559 F Supp 2d 264; People v Hunter, 17 NY3d 725; People v Spencer, 1 AD3d 709.) II. Where the trial was short and factually straightforward, the length of jury deliberations exceeded the time that evidence was elicited from the stand, and the court noted the frustration of the jurors with the continued deliberations, the trial court’s decision to issue two Allen charges, rather than declare a mistrial, was coercive and deprived Pettis Hardy of a fair trial. (People v Pagan, 45 NY2d 725; People v Aponte, 2 NY3d 304; Allen v United States, 164 US 492; Matter of Plummer v Rothwax, 63 NY2d 243; People v Cheeseborough, 158 AD2d 534; People v Baptiste, 72 NY2d 356; People v Campbell, 203 AD2d 127; People v Reed, 230 AD2d 866; People v Sheldon, 136 AD2d 761.)

      Cyrus R. Vance, Jr., District Attorney, New York City {Jared Wolkowitz, Manu K. Balachandran and Alan Gadlin of counsel), for respondent.
    I. Defendant was not entitled to a circumstantial evidence charge. (People v Daddona, 81 NY2d 990; People v Silva, 69 NY2d 858; People v Santiago, 22 NY3d 990; People v Barnes, 50 NY2d 375; People v Gerard, 50 NY2d 392; People v Von Werne, 41 NY2d 584; People v Roldan, 211 AD2d 366, 88 NY2d 826; People v Holmes, 204 AD2d 243; People v Rodriguez, 17 NY3d 486; People v Guidice, 83 NY2d 630.) 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. (People v Pagan, 45 NY2d 725; Allen v United States, 164 US 492; People v Aponte, 2 NY3d 304; People v Baptiste, 72 NY2d 356; Matter of Rivera v Firetog, 11 NY3d 501; Matter of Owen v Stroebel, 65 NY2d 658; Matter of Plummer v Rothwax, 63 NY2d 243; People v Stephens, 63 AD3d 624; People v Walker, 83 NY2d 455.)
   OPINION OF THE COURT

Fahey, J.

The primary issue on this appeal is whether a surveillance video showing defendant rifling through and then walking off with the victim’s purse constitutes direct evidence of his guilt of larceny, despite the fact that defendant offered an alternative explanation for his behavior. We hold that the surveillance video constituted direct evidence of defendant’s guilt, and that no circumstantial evidence charge was required. A particular piece of evidence is not required to be dispositive of a defendant’s guilt in order to constitute direct evidence.

L

Defendant was employed as a security guard at a nightclub in Manhattan in February 2011. The victim was also at the club on the night in question, working as a stylist at a music video shoot hosted by the club. As the victim drove home, she realized she did not have her purse with her. She called the club, but her bag was not located. In an attempt to locate the purse, the general manager of the club viewed surveillance video from that night.

That surveillance video shows that defendant sat down on a couch next to the victim, positioning himself between her and her purse. Defendant then picked up the purse from the couch and put it underneath him, out of view. When the victim and her friends had left that area of the nightclub, defendant picked up the purse again and began rifling through its contents. He looked through the bag for over a minute. The video then shows defendant walking out of that area of the club with the purse in his hand.

Another camera angle shows that defendant briefly exited the club a minute later. At that point, defendant did not appear to be holding the purse in his hand. The victim and her friends were standing a few feet away from the door, and upon exiting the club in close proximity to the victim and her friends, defendant immediately went back inside. A different camera angle shows that defendant then assisted in picking up trash inside the club, also without the purse in his hand.

Another employee of the security group for which defendant was working also viewed the surveillance video, and he testified at trial that he called defendant to confront him. At first, defendant denied any knowledge of the purse, but when the witness told defendant that he had seen the surveillance video, defendant responded, “I don’t have it, but I can get it.”

Defendant was charged with four counts of grand larceny in the fourth degree (Penal Law § 155.30 [4]) and one count of petit larceny (§ 155.25). During the ensuing jury trial, defendant requested that the trial court instruct the jury with the standard Criminal Jury Instructions charge on circumstantial evidence. The court refused, holding that the case was not “based entirely on circumstantial evidence.”

The jurors deliberated for some time and sent out two notes stating that they were unable to reach a unanimous verdict. On both occasions, defendant requested a mistrial. The court denied those requests, and instead delivered first a modified Allen charge and then a full Allen charge (see generally Allen v United States, 164 US 492, 501 [1896]). The jury found defendant guilty as charged.

A unanimous Appellate Division affirmed (115 AD3d 511 [1st Dept 2014]). The Appellate Division 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, notwithstanding that defendant’s intent was a matter to be inferred from the evidence” (id. at 512). The Court also rejected defendant’s contention that the trial court abused its discretion in denying his requests for a mistrial, noting that “[although the trial was relatively short and simple, at each of the two junctures the circumstances indicated that further deliberations might be fruitful” and that “neither of the jury’s notes was indicative of a hopeless deadlock” (id.).

A Judge of this Court granted defendant leave to appeal (23 NY3d 1037 [2014]). We now affirm.

IL

It is well settled that a trial court must grant a defendant’s request for a circumstantial evidence charge when the proof of the defendant’s guilt rests solely on circumstantial evidence (see People v Santiago, 22 NY3d 990, 991-992 [2013]; People v Roldan, 88 NY2d 826, 827 [1996]; People v Brian, 84 NY2d 887, 889 [1994]). By contrast, where there is both direct and circumstantial evidence of the defendant’s guilt, such a charge need not be given (see Roldan, 88 NY2d at 827; People v Barnes, 50 NY2d 375, 380 [1980]).

We agree with defendant that his statement to the prosecution witness that he did not have the purse but could get it was not direct evidence of his guilt. A defendant’s statement is direct evidence only “if it constitutes ‘a relevant admission of guilt’” (People v Guidice, 83 NY2d 630, 636 [1994], quoting People v Rumble, 45 NY2d 879, 880 [1978]; see People v Licitra, 47 NY2d 554, 558-559 [1979], rearg denied 53 NY2d 938 [1981]). For example, where the defendant was charged with assault under an accomplice liability theory, and the defendant’s statements consisted of admissions that “he ‘sent two guys to break [the victim’s] legs’ ” and “ ‘put [the victim] in the hospital,’ ” we held that the defendant’s statements constituted direct evidence of his guilt (Guidice, 83 NY2d at 636).

By contrast, where the defendant makes an admission that merely “includ[es] inculpatory acts from which a jury may or may not infer guilt,” the statement is circumstantial and not direct evidence (People v Burke, 62 NY2d 860, 861 [1984] [internal quotation marks omitted]; see People v Sanchez, 61 NY2d 1022, 1023 [1984]). For example, where the defendant was accused of arson, and the defendant told a prosecution witness who asked whether the defendant had “covered his tracks” that “there was nothing to worry about, he had left nothing behind, [and] no one would find anything,” we held that the defendant’s statements were circumstantial evidence, inasmuch as they “still required an inference that [the] defendant had set the fire” (Burke, 62 NY2d at 861 [internal quotation marks omitted]).

Here, defendant’s statement — that he did not have the purse but could get it — was not a direct admission of his guilt of larceny. Rather, defendant’s statement was also consistent with an inference that although he did not steal the purse, he knew where the purse was located and thought he could obtain it. Inasmuch as his statement merely included inculpatory facts from which the jury may or may not have inferred guilt, his statement was circumstantial rather than direct evidence (see Burke, 62 NY2d at 861).

We agree with the People, however, that the surveillance video constituted direct evidence of defendant’s guilt of larceny. The “taking” element of larceny “is satisfied by a showing that the thief exercised dominion and control over the property for a period of time, however temporary, in a manner wholly inconsistent with the owner’s continued rights” (People v Jennings, 69 NY2d 103, 118 [1986]; see People v Olivo, 52 NY2d 309, 318 [1981], rearg denied 53 NY2d 797 [1981]). “Thus, a shoplifter who exercises dominion and control over the goods wholly inconsistent with the continued rights of the owner can be guilty of larceny even if apprehended before leaving the store” (People v Robinson, 60 NY2d 982, 983-984 [1983], citing Olivo, 52 NY2d 309).

Here, the surveillance video shows defendant hiding the purse from the victim’s view, waiting until she and her friends had left the area to rummage through its contents, and then picking it up and walking out of the area while holding it in his hand. The video is therefore direct evidence of a taking, inasmuch as the video requires no inference to conclude that defendant exercised dominion and control over the purse, however temporary, in a manner that was wholly inconsistent with the victim’s continued rights as the owner (see Jennings, 69 NY2d at 118).

Defendant contends that because he presented evidence at trial that he had been authorized as part of his security duties to move purses and other items off of the back bar of the club, the video does not constitute direct evidence of a taking. Defendant’s theory is that the jury could have also inferred from the video that he was merely moving the purse to another location inside the club, consistent with his job duties. We are unpersuaded.

This Court has described circumstantial evidence as evidence that “ ‘never proves directly the fact in question’ ” (People v Bretagna, 298 NY 323, 325 [1949], cert denied 336 US 919 [1949], reh denied 336 US 922 [1949], quoting Pease v Smith, 61 NY 477, 485 [1875]). By contrast, the surveillance video constitutes direct evidence because it requires no inference to establish the taking element of a larceny. The fact that defendant offered the jury an alternative explanation of his behavior, one that was inconsistent with larcenous intent, does not change the character of the evidence from direct to circumstantial. Furthermore, a particular piece of evidence is not required to be wholly dispositive of guilt in order to constitute direct evidence, so long as it proves directly a disputed fact without requiring an inference to be made. In other words, even if a particular item of evidence does not conclusively require a guilty verdict, so long as the evidence proves directly a fact in question, the evidence is direct evidence of guilt. Inasmuch as the proof against defendant consisted of both direct and circumstantial evidence, the trial court was not required to provide a circumstantial evidence charge to the jury (see Roldan, 88 NY2d at 827; Barnes, 50 NY2d at 380).

m.

Finally, we reject defendant’s contentions that the trial court abused its discretion as a matter of law in refusing to grant his requests for a mistrial and that the trial court’s procedure coerced the jury into delivering a verdict. “It is well settled that a trial judge’s determination regarding the declaration of a mistrial on jury deadlock grounds involves the exercise of judicial discretion” (Matter of Rivera v Firetog, 11 NY3d 501, 507 [2008], cert denied 556 US 1193 [2009]; see People v Baptiste, 72 NY2d 356, 360 [1988]). Trial courts are “ ‘best situated to take all [the] circumstances into account and determine whether a mistrial is in fact required in a particular case’ ” (Matter of Owen v Stroebel, 65 NY2d 658, 660 [1985], cert denied 474 US 994 [1985], quoting Matter of Plummer v Rothwax, 63 NY2d 243, 250 [1984]). Atrial court’s decision as to whether to grant a mistrial is therefore entitled to “great deference” (Rivera, 11 NY3d at 507; Baptiste, 72 NY2d at 360; Plummer, 63 NY2d at 250).

We cannot say that the trial court abused its discretion as a matter of law in refusing to grant defendant’s mistrial requests. We agree with the Appellate Division that although the trial was not lengthy, “at each of the two junctures the circumstances indicated that further deliberations might be fruitful,” and “neither of the jury’s notes was indicative of a hopeless deadlock” (Hardy, 115 AD3d at 512). Moreover, the trial court’s procedures were not coercive. The court’s Allen charges were appropriately balanced and informed the jurors that they did not have to reach a verdict and that none of them should surrender a conscientiously held position in order to reach a unanimous verdict (cf. People v Aponte, 2 NY3d 304, 308-309 [2004]).

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Lippman and Judges Pigott, Rivera, AbdusSalaam and Stein concur.

Order affirmed.

       The court did instruct the jury with a modified circumstantial evidence charge, which the court stated it generally provided when the case was based on both direct and circumstantial evidence. Inasmuch as we hold that the court was not required to give any circumstantial evidence charge, the language of the modified charge is irrevelant on this appeal.


author: Pigott, J.

text:
    [43 NE3d 740, 22 NYS3d 383]
    The People of the State of New York, Respondent, v Samuel Small, Also Known as Samuel Smalls, Appellant.
    Argued October 22, 2015;
    decided November 19, 2015

      POINTS OF COUNSEL

      Lynn W.L. Fahey, Appellate Advocates, New York City (David P. Greenberg and William A. Loeb of counsel), for appellant.
    I. By failing to produce appellant for arraignment on charges in the felony complaint, as directed by the arrest warrant, the People unlawfully thwarted the grand jury notice requirement and rendered themselves incapable of readiness for trial on those charges. (People ex rel. Maxian v Brown, 77 NY2d 422; People v Evans, 79 NY2d 407; People v Golden, 250 AD2d 622; People v Smoke, 43 AD3d 1332; People v Maddox, 31 AD3d 970; People v Dahlbender, 23 AD3d 493; People v Brown, 14 AD3d 356; People v Jones, 281 AD2d 185; People v Perez-Tavares, 238 AD2d 446; People v Choi, 210 AD2d 495.) II. Because a 1993 habeas corpus decision found that appellant’s incarceration on a 1992 parole violation charge was unsupported by the evidence, that incarceration could not be used to extend the 10-year limitation on prior felonies so as to allow appellant’s adjudication as a second felony offender. (People v Dozier, 78 NY2d 242; People v Love, 71 NY2d 711; People v Cohen, 50 NY2d 908.)

      Kenneth P Thompson, District Attorney, Brooklyn {Ann Bordley and Leonard Joblove of counsel), for respondent.
    I. The trial court properly denied defendant’s motion to dismiss the indictment in the interest of justice and his motion to dismiss the indictment on the basis of an alleged jurisdictional impediment to his conviction. (People v Rickert, 58 NY2d 122; People v Belge, 41 NY2d 60; People v Herman L., 83 NY2d 958; People ex rel. Matthews v New York State Div. of Parole, 95 NY2d 640; People ex rel. Maxian v Brown, 77 NY2d 422; County of Riverside v McLaughlin, 500 US 44; Gerstein v Pugh, 420 US 103; People v Ramos, 99 NY2d 27; People v Pressley, 94 NY2d 935; United States v Drake, 655 F2d 1025.) II. Defendant’s CPL 30.30 claim with respect to the Taitt burglary is meritless. (People v Cortes, 80 NY2d 201; People v Farkas, 16 NY3d 190; People v Sinistaj, 67 NY2d 236; People v Sant, 120 AD3d 517; People v Dearstyne, 230 AD2d 953; People v Schaffer, 200 AD2d 695; People v Beasley, 16 NY3d 289; People v Goode, 87 NY2d 1045; People v Luperon, 85 NY2d 71; People v Henderson, 120 AD3d 1258.) III. The trial court properly adjudicated defendant a second violent felony offender. In any event, even if defendant’s adjudication was erroneous, defendant’s sentences should not be disturbed. (People v McEachern, 275 AD2d 330; People v Cagle, 7 NY3d 647; People v Meckwood, 20 NY3d 69; People v Love, 71 NY2d 711; People v Catalanotte, 72 NY2d 641; People v Dozier, 78 NY2d 242; People ex rel. Flores v Dalsheim, 66 AD2d 381; People v Huntley, 43 NY2d 175; People ex rel. McGee v Walters, 62 NY2d 317; People ex rel. Lord Organic Allah v New York State Bd. of Parole, 158 AD2d 328.)
   OPINION OF THE COURT

Pigott, J.

Defendant Samuel Small, also known as Samuel Smalls, was indicted on March 30, 2006 for various charges arising from a burglary that occurred January 11, 2005 in Brooklyn. He was arrested on April 4, 2006 for a different burglary that occurred earlier that day. At arraignment, the People served notice that they would be presenting the April 4 burglary to the grand jury on Monday, April 10, and defendant notified the People that he wished to testify.

Sometime between April 4 and April 7, the People learned that defendant was connected to yet another burglary that occurred February 23, 2006. On April 7, they filed a felony complaint against defendant for that crime and obtained a warrant for his arrest. Because defendant was already in custody for the April 4 burglary, however, he was never formally arrested or brought before a court on the new charges. According to defendant, prison officials merely informed him that he was being arrested for a different offense. When defendant appeared in court on April 10 for the grand jury proceeding, the People notified him that they would also ask about the February 23 burglary. Defendant agreed to waive immunity and testify about both the February and April burglaries. The grand jury returned a true bill with respect to both incidents, charging defendant with two counts of burglary in the second degree (Penal Law § 140.25 [2]) and other related offenses.

Defendant unsuccessfully moved on three separate occasions to dismiss the indictment based on the People’s noncompliance with the arrest warrant, their failure to provide adequate grand jury notice and their resulting inability to declare readiness for trial. After a jury trial on the consolidated indictments, defendant was found guilty of one count of burglary in the second degree relative to the January 2005 burglary and one count of burglary in the second degree relative to the February 23 burglary. (He was acquitted of all counts related to the April 4 burglary.)

The sentencing court adjudicated defendant a second violent felony offender based on a 1985 conviction for robbery in the second degree, concluding that the prior offense occurred within 10 years of defendant’s January 2005 burglary, after excluding intervening periods of time during which defendant was incarcerated. Defendant objected, arguing that one of the periods of incarceration — 442 days from August 1992 to October 1993 for a parole violation — should not have been used to extend the 10-year limit because a habeas court had ordered his release from confinement. In light of the evidence presented at the parole revocation hearing, the habeas court concluded that defendant had been unlawfully confined and ordered his immediate release.

The sentencing court rejected defendant’s argument with respect to the parole violation, found the 1985 conviction to be a valid predicate felony and sentenced him to 15 years in prison followed by five years of postrelease supervision for the January 2005 burglary.

The Appellate Division affirmed the judgment of conviction and sentence (People v Small, 112 AD3d 857 [2d Dept 2013]), and a Judge of this Court granted defendant leave to appeal (23 NY3d 1067 [2014]).

We hold that the courts below properly denied defendant’s motions to dismiss the grand jury indictment for the February 23 burglary. But we agree with defendant that he should not have been sentenced as a second violent felony offender and therefore modify the order of the Appellate Division by remitting the case for resentencing.

I

Defendant seeks to vacate his conviction for the February 23 burglary based on two alleged violations of the Criminal Procedure Law: (1) failure to arraign him “without unnecessary delay” in violation of CPL 120.90 and (2) failure to give him notice of a grand jury proceeding in violation of CPL 190.50.

CPL 120.90 provides that, “[u]pon arresting a defendant for any offense pursuant to a warrant of arrest... a police officer . . . must without unnecessary delay bring the defendant before the local criminal court in which such warrant is returnable” (CPL 120.90 [1]). Defendant claims he was arrested for the February 23 burglary on Friday, April 7, and that the failure to arraign him on those charges before Monday, April 10, constituted unnecessary delay. The courts below correctly concluded, however, that the People were not subject to the “unnecessary delay” requirement of CPL 120.90 because defendant was not arrested on April 7. Only police officers may execute an arrest warrant (see CPL 120.10 [1]), and correction officers are peace officers, not police officers (see CPL 1.20 [33]; 2.10 [25]). Even if we accept defendant’s assertions that correction officers informed him of his arrest and that they attempted to arrest him, they could not have legally done so. Therefore, section 120.90, by its plain terms, does not apply in this situation.

Additionally, the People did not violate section 120.90 by failing to arraign defendant between Friday and Monday. “No specific time span is universally considered reasonable or per se unreasonable” in bringing a defendant before the local criminal court (Peter Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 120.90 at 522 [2004]). Because defendant was already detained on another charge, and his arrest was authorized by a warrant, any prearraignment delay did not implicate defendant’s constitutional rights (see id. [distinguishing prearraignment delay following a warrantless arrest from prearraignment delay following an arrest authorized by a warrant, noting that the latter has already been subject to a judicial “determination of reasonable cause by a neutral, detached official”]; cf. People ex rel. Maxian v Brown, 77 NY2d 422, 427 [1991] [finding 24-hour delay-unreasonable when it followed a warrantless arrest]). Defendant would have been in custody until April 10 regardless of whether he was arraigned on the February 23 burglary, as he was scheduled to appear in court on that date for the grand jury proceeding. Under these circumstances, we cannot say the weekend delay was unreasonable.

Defendant also argues that the People violated CPL 190.50 (5) (a) by failing to give him notice that they would be presenting evidence of the February 23 burglary at the April 10 grand jury proceeding. That provision states that “[w]hen a criminal charge against a person is being or is about to be or has been submitted to a grand jury, such person has a right to appear before such grand jury as a witness in his own behalf” (CPL 190.50 [5] [a]). “The district attorney is not obliged to inform such a person” about the grand jury proceeding, however, “unless such person is a defendant who has been arraigned in a local criminal court upon a currently undisposed of felony complaint charging an offense which is a subject of the . . . proceeding” (id. [emphasis added]). In such a case, “the district attorney must notify the defendant or his attorney of the prospective or pending grand jury proceeding and accord the defendant a reasonable time to exercise his right to appear as a witness” (id.). If the People fail to comply with the statute’s notice requirement, the grand jury proceeding is defective and, upon a motion by the defendant, the resulting indictment must be dismissed (CPL 190.50 [5] [c]; 210.20 [1] [c]; 210.35 [4]).

Just as the “unnecessary delay” provision in CPL 120.90 does not apply to a defendant who has not yet been arrested, the notice requirement in CPL 190.50 (5) (a) does not apply to a defendant who has not yet been arraigned. The statute’s plain language entitles a person to notice of an upcoming grand jury proceeding only if he has “been arraigned in a local criminal court” on the offense to be presented (id.). Because defendant had not yet been arraigned on the felony complaint for the February 23 burglary, the People were not statutorily required to notify him that they would also be presenting on those charges.

II

Defendant further contends that he should not have been sentenced as a second violent felony offender for the January 2005 burglary because his 1985 conviction for second-degree robbery occurred more than 10 years earlier, and the intervening periods of incarceration did not close the gap.

A defendant who stands convicted of a violent felony may be adjudicated a second violent felony offender if he was previously convicted of a violent felony within 10 years of the current offense (see Penal Law § 70.04 [1] [b] [iv]). “[A]ny period of time during which the person was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony” is excluded from the 10-year calculation (Penal Law § 70.04 [1] [b] [v]).

Central to this appeal is the language “for any reason.” The legislative history “is silent” on the meaning of that phrase (People v Love, 71 NY2d 711, 716 [1988]), but we have construed it to mean that a period of incarceration will not be excluded if it was “without reason” or “patently unjustified” (People v Dozier, 78 NY2d 242, 249-250 [1991] [emphasis omitted], quoting Love, 71 NY2d at 716). Thus, in Dozier we found that a period of incarceration should not have been excluded where it was based on a conviction that was subsequently overturned due to newly discovered evidence. We reasoned that extending the 10-year limitation on prior violent felonies “for an unjustified period of incarceration resulting from a flawed conviction,” would amount to an absurd, unreasonable or unjust construction of the Penal Law (id. at 250).

Although the habeas court did not vacate defendant’s conviction for a parole violation, it did grant his immediate release from confinement after determining that “the evidence did not support” defendant’s incarceration. A person “illegally imprisoned or otherwise restrained in his liberty . . . may petition without notice for a writ of habeas corpus to inquire into the cause of such detention and for deliverance” (CPLR 7002 [a]). If a judge considering the habeas petition determines that a person has been unlawfully detained, he “shall . . . issue a writ of habeas corpus for the relief of that person” (id.). That the habeas court in this case granted defendant’s immediate release based on a lack of evidence indicates that defendant was “imprisoned without reason” from 1992-1993. We decline to read section 70.04 (1) (b) (v), or our decisions in Dozier and Love, to include only those periods of incarceration that are based on subsequently invalidated or vacated convictions (see Dozier, 78 NY2d at 249 [rejecting a strict, literal reading of section 70.04 (1) (b) (v)]). Where, as here, a period of incarceration has been deemed unlawful and unsupported by evidence, it should not be used to extend the 10-year limitation on prior violent felony convictions.

Accordingly, the order of the Appellate Division should be modified by remitting the case to Supreme Court for resentencing in accordance with this opinion and, as so modified, affirmed.

Chief Judge Lippman and Judges Rivera, Abdus-Salaam, Stein and Fahey concur.

Order modified by remitting the case to Supreme Court, Kings County, for resentencing in accordance with the opinion herein and, as so modified, affirmed.

      . To the extent defendant argues that the police also violated CPL 120.90 (1) by failing to arrest him pursuant to the warrant, that claim is unpreserved.

      . In light of this conclusion, we have no need to consider defendant’s CPL 30.30 claim.