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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Peter ALLEN, appellant.

Decided: March 09, 2010

REINALDO E. RIVERA, J.P., FRED T. SANTUCCI, RANDALL T. ENG, and CHERYL E. CHAMBERS, JJ. Robert C. Mitchell, Riverhead, N.Y. (Kirk R. Brandt of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marion M. Tang of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Gazzillo, J., at trial;  R. Doyle, J., at sentence), rendered September 11, 2007, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's Batson challenge (see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69) was properly denied.   Since the prosecutor offered a gender-neutral explanation for the questioned peremptory challenges, the issue of whether the defendant made a prima facie showing of discrimination under the first prong of the Batson analysis is academic (see People v. Smocum, 99 N.Y.2d 418, 422, 757 N.Y.S.2d 239, 786 N.E.2d 1275;  People v. Payne, 88 N.Y.2d 172, 182, 643 N.Y.S.2d 949, 666 N.E.2d 542).   However, the defendant failed to satisfy his ultimate burden of demonstrating, under the third prong of the Batson analysis, that the prosecutor's explanation was a pretext for gender discrimination (see People v. Smocum, 99 N.Y.2d at 422-423, 757 N.Y.S.2d 239, 786 N.E.2d 1275;  People v. Payne, 88 N.Y.2d at 181-183, 643 N.Y.S.2d 949, 666 N.E.2d 542;  People v. Smith, 66 A.D.3d 801, 885 N.Y.S.2d 914;  People v. Dehaarte, 65 A.D.3d 593, 883 N.Y.S.2d 723;  People v. Jacobs, 54 A.D.3d 969, 863 N.Y.S.2d 826).

 The defendant's contention that reversal is required because the Justice who presided over his trial recused himself prior to sentencing is unpreserved for appellate review (see People v. Doyle, 15 A.D.3d 674, 675, 791 N.Y.S.2d 583;  People v. Jackson, 185 A.D.2d 363, 586 N.Y.S.2d 625;  People v. Bishop, 111 A.D.2d 398, 489 N.Y.S.2d 365).   In any event, where, as here, a Justice voluntarily recuses himself or herself to avoid the appearance of impropriety, “judicial proceedings had prior to the recusal ․ remain valid, absent a showing of actual bias or actual impropriety” (People v. Willsey, 148 A.D.2d 764, 765-766, 538 N.Y.S.2d 342;  see Matter of Kurz v. Justices of Supreme Ct. of N.Y., Kings County, 228 A.D.2d 74, 76, 654 N.Y.S.2d 783).   No such showing has been made here (see Matter of Kurz v. Justices of Supreme Ct. of N.Y., Kings County, 228 A.D.2d at 76, 654 N.Y.S.2d 783;  People v. Willsey, 148 A.D.2d at 766, 538 N.Y.S.2d 342).

The defendant's claim that the trial court's circumstantial evidence instruction erroneously gave the jury the impression that there was direct evidence in the case is unpreserved for appellate review (see CPL 470.05 [2] ) and, in any event, is without merit (see People v. Miller, 150 A.D.2d 910, 541 N.Y.S.2d 257).

 Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of burglary in the second degree beyond a reasonable doubt.   Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

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