People v. Rohena ( 1992 )

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Broomer, J.), rendered December 19, 1988, convicting him of attempted burglary in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Although it was improper for Assistant District Attorney Daniel Penofsky to have prosecuted this matter, since he was not admitted to the practice of law, the defendant has failed to demonstrate any resulting prejudice. Absent a showing of prejudice, this regrettable circumstance does not constitute reversible error (see, People v Carter, 77 NY2d 95, 107, cert denied — US —, 111 S Ct 1599; People v Jackson, 163 AD2d 489).

The defendant’s contention with regard to the court’s charge was not preserved for appellate review (CPL 470.05 [2]). In any event, the court’s predeliberation Allen charge did not deprive the defendant of a fair trial (see, People v Innocent, 150 AD2d 608; People v Bowen, 134 AD2d 356).

Finally, we have reviewed the defendant’s sentence and find it to be appropriate under all of the circumstances (see, People v Suitte, 90 AD2d 80). Bracken, J. P., Lawrence, Eiber and Miller, JJ., concur.