In the interest of justice we consider appellant's unpreserved claim that the court's Allen charge contained language found reversible in People v Antommarchi ( 80 N.Y.2d 247). The trial court's Allen charge included the following language: "[I]f you had a reasonable doubt on any relative point * * * and one or more of your fellow jurors questioned you about it, he would be willing and able to give what you believe is a fair, calm explanation of your position based upon the evidence or lack of evidence."
The Court of Appeals in Antommarchi (80 N.Y.2d, supra, at 252) held that nearly identical language in an Allen charge "that requires jurors to supply concrete reasons `based upon the evidence' for their inclination to acquit implicitly imposes on defendants the burden of presenting a defense that supplies the jurors with the arguments they need to legitimize their votes [citations omitted]". Given the context in which the charge was given and the less than overwhelming proof of guilt, the error cannot be deemed harmless.
Concur — Murphy, P.J., Rosenberger, Rubin, Tom and Mazzarelli, JJ.