Opinion
May 18, 1992
Appeal from the Supreme Court, Kings County (Broomer, J.).
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 N.Y.2d 95, cert denied ___ US ___, 111 S Ct 1599; People v. Jackson, 163 A.D.2d 489).
The defendant's contentions with regard to the court's predeliberation Allen charge are not preserved for appellate review (see, CPL 470.05). In any event, the charge did not deprive the defendant of a fair trial (see, People v. Innocent, 150 A.D.2d 608; People v. Bowen, 134 A.D.2d 356).
The trial court properly refused to charge criminal trespass in the third degree as a lesser included offense of attempted burglary in the second degree since there is simply no reasonable view of the evidence that could lead one to conclude that the defendant, equipped with a burglar's tool, attempted unlawful entry into the premises for an innocent, rather than a criminal, purpose (see, People v. Scoggins, 167 A.D.2d 321).
We have reviewed the defendant's sentence and find it to be appropriate under all of the circumstances (see, People v Suitte, 90 A.D.2d 80).
The defendant's remaining contentions are unpreserved for appellate review (see, CPL 470.05) and, in any event, do not warrant reversal. Bracken, J.P., Lawrence, Eiber and Santucci, JJ., concur.