This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 159 

The People &c.,

 Respondent,

 v.

Pettis Hardy,

 Appellant.

Eunice C. Lee, for appellant.

Jared Wolkowitz, for respondent.

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

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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. 

I.

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

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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."1

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

1 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 irrelevant on this appeal. 

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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 "[a]lthough 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. 

II. 

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

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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

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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

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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

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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). 

III. 

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

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v Baptiste, 72 NY2d 356, 360 [1988]). Trial courts are " 'best

situated to take all 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]). A trial 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. 

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* * * * * * * * * * * * * * * * *

Order affirmed. Opinion by Judge Fahey. Chief Judge Lippman and

Judges Pigott, Rivera, Abdus-Salaam and Stein concur.

Decided November 18, 2015

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