PEOPLE v. GREEN

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.