PEOPLE v. HYLAND (2007)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Dunlop, J.), rendered June 8, 2005, convicting him of assault in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant contends that the court's supplemental instructions in response to a note from the jury during deliberations were improper and prejudicial (see CPL 310.30;  People v. Steinberg, 79 N.Y.2d 673, 684, 584 N.Y.S.2d 770, 595 N.E.2d 845;  People v. Johnson, 255 A.D.2d 337, 679 N.Y.S.2d 335).   Contrary to the defendant's contentions, the court did not err in declining to grant the defense counsel's request for an Allen charge (see Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528) in response to the jury's note that they were “11-1 and cannot resolve” since the jury had only deliberated for part of an afternoon when the note was given (see People v. Love, 307 A.D.2d 528, 762 N.Y.S.2d 162;  People v. Reed, 230 A.D.2d 866, 646 N.Y.S.2d 832;  People v. Kinard, 215 A.D.2d 591, 626 N.Y.S.2d 858;  People v. Fleury, 177 A.D.2d 504, 575 N.Y.S.2d 713).   The remainder of the defendant's claims regarding the court's supplemental instructions are unpreserved for appellate review (see CPL 470.05[2];  People v. Barboza, 24 A.D.3d 460, 805 N.Y.S.2d 657).

 Contrary to the defendant's contention, the representation provided by his trial counsel cannot be characterized as ineffective. Defense counsel's failure to request additional instructions in response to the note from the jury indicating a deadlock may have constituted a trial strategy to avoid agreement on a guilty verdict for a lesser-included offense (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Andujar, 180 A.D.2d 743, 580 N.Y.S.2d 379).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).