People v. Green

202 A.D.2d 186, 608 N.Y.S.2d 626, 1994 N.Y. App. Div. LEXIS 1823

Opinion

—Judgment, Supreme Court, New York County (Richard Lowe, III, J.), rendered November 8, 1991, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him, as a second violent felony offender, to a term of 12 Vi to 25 years, unanimously modified on the law, the facts and as a matter of discretion in the interest of justice to reduce the sentence to 8 to 16 years, and otherwise affirmed.

Defendant’s contention that the court’s Allen charge (Allen v United States, 164 US 492) impermissibly shifted the burden of proof is unpreserved as a matter of law (CPL 470.05 [2]), 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 NY2d 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.