Opinion
March 3, 1994
Appeal from the Supreme Court, New York County (Richard Lowe, III, J.).
Defendant's contention that the court's Allen charge (Allen v. United States, 164 U.S. 492) impermissibly shifted the burden of proof is unpreserved as a matter of law (CPL 470.05), and we decline to review it in the interest of justice. If we were to review it, we would find that the charge, viewed as a whole, merely exhorted the jurors to keep their minds open and not to speculate, and did not impose an "affirmative obligation * * * to supply concrete reasons `based upon the evidence' for [an] inclination to acquit" (People v Antommarchi, 80 N.Y.2d 247, 251-252).
We find the sentence excessive to the extent indicated, and modify the judgment of conviction accordingly.
Concur — Murphy, P.J., Ellerin, Kupferman and Nardelli, JJ.