| People v Hardy |
| 2014 NY Slip Op 01673 [115 AD3d 511] |
| March 13, 2014 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Pettis Hardy, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Manu K. Balachandran ofcounsel), for respondent.
Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered October28, 2011, convicting defendant, after a jury trial, of grand larceny in the fourth degree(four counts) and petit larceny, and sentencing him, as a second felony offender, to anaggregate term of two to four years, unanimously affirmed.
On two occasions when the deliberating jury sent notes indicating their inability toagree, the court properly exercised its discretion in denying defendant's mistrial motionsand instead delivering appropriate supplemental charges to encourage the jury to reach averdict. Although the trial was relatively short and simple, at each of the two juncturesthe circumstances indicated that further deliberations might be fruitful (see Matter ofPlummer v Rothwax, 63 NY2d 243, 250-251 [1984]). In particular, neither of thejury's notes was indicative of a hopeless deadlock (see e.g. People v Stephens, 63 AD3d 624 [1st Dept 2009],lv denied 13 NY3d 800 [2009]). Defendant's remaining challenges to the court'sinteractions with the deliberating jury are unpreserved and we decline to review them inthe interest of justice. As an alternative holding, we find them to be unavailing.
Defendant did not preserve his claim that when the jury viewed surveillancevideotapes while two witnesses were testifying, these witnesses gave lay opiniontestimony about the meaning of the events depicted. Defendant only objected that thevideo should be "played without narration." However, as defendant concedes on appeal,it was permissible for the witnesses to explain matters depicted on the videotapes thatthey had personally participated in or observed. Accordingly, defendant's generalobjection to "narration" was insufficient to alert the court to his present claim that thewitnesses had strayed from areas of their personal knowledge and rendered opinions(see People v Graves, 85 NY2d 1024, 1026-1027 [1995]). We decline to reviewthis unpreserved claim in the interest of justice. As an alternative holding, we find nobasis for reversal. The witnesses' testimony did not provide improper lay opinions, but"served to aid the jury in making an independent assessment" about the video (seePeople v Russell, 79 NY2d 1024, 1025 [1992]). Even when the witnesses describedevents depicted on the videotapes that they had not observed, they were still generallytestifying about matters within their [*2]knowledge, andnothing in their testimony deprived defendant of a fair trial.
The court properly declined to provide a circumstantial evidence charge, since therewas both direct and circumstantial evidence of defendant's guilt, notwithstanding thatdefendant's intent was a matter to be inferred from the evidence (see People vRoldan, 88 NY2d 826 [1996]; People v Daddona, 81 NY2d 990 [1993]).
We perceive no basis for reducing the sentence. Concur—Acosta, J.P.,Renwick, Feinman and Clark, JJ.