People v Hyland

2007 NY Slip Op 09244 [45 AD3d 781]

November 20, 2007

Appellate Division, Second Department

As corrected through Wednesday, January 16, 2008

The People of the State of New York, Respondent, v ScottHyland, Appellant.

—[*1]Lynn W.L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C.Abbot, and Jessica L. Melton of counsel), for respondent.

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, andimposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that the court's supplemental instructions in response to a note fromthe jury during deliberations were improper and prejudicial (see CPL 310.30; Peoplev Steinberg, 79 NY2d 673, 684 [1992]; People v Johnson, 255 AD2d 337 [1998]).Contrary to the defendant's contentions, the court did not err in declining to grant the defensecounsel's request for an Allen charge (see Allen v United States, 164 US 492[1896]) in response to the jury's note that they were "11-1 and cannot resolve" since the jury hadonly deliberated for part of an afternoon when the note was given (see People v Love,307 AD2d 528 [2003]; People v Reed, 230 AD2d 866 [1996]; People v Kinard,215 AD2d 591 [1995]; People v Fleury, 177 AD2d 504 [1991]). The remainder of thedefendant's claims regarding the court's supplemental instructions are unpreserved for appellatereview (see CPL 470.05 [2]; People v Barboza, 24 AD3d 460 [2005]).

Contrary to the defendant's contention, the representation provided by his trial counsel cannotbe characterized as ineffective. Defense counsel's failure to request additional instructions inresponse to the note from the jury indicating a deadlock may have constituted a trial strategy toavoid agreement on a guilty verdict for a lesser-included offense (see People vBenevento, [*2]91 NY2d 708, 712 [1998]; People vAndujar, 180 AD2d 743 [1992]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Ritter, J.P., Goldstein, Skelos and Dillon, JJ., concur.