Opinion
February 13, 1996
Appeal from the Supreme Court, Suffolk County (Mullen, J.).
Ordered that the judgment is affirmed.
There is no merit to the defendant's contention that the trial court improperly granted the People's motion to amend the indictment to delete the language that the defendant had been acting in concert with another. "There is no distinction between liability as a principal and criminal culpability as an accessory and the status for which the defendant is convicted has no bearing upon the theory of the prosecution" (People v. Duncan, 46 N.Y.2d 74, 79-80, cert denied 442 U.S. 910). Therefore, the amendment in this case did not alter the theory of the People's case and did not prejudice the defendant (see, People v. Duncan, supra; People v. Jones, 195 A.D.2d 1072; People v. Cepedes, 130 A.D.2d 676; People v. Johnson, 87 A.D.2d 829).
The defendant's contention that attempted burglary in the second degree should have been submitted to the jury as a lesser included offense of burglary in the second degree is also without merit. A lesser included offense may be charged only when there is a reasonable view of the evidence that the defendant committed the lesser offense but not the greater offense (see, People v Lewoc, 101 A.D.2d 927; see also, CPL 300.50, [2]; People v Green, 56 N.Y.2d 427). A person is guilty of burglary in the second degree when he knowingly enters or remains unlawfully in a building with the intent to commit a crime therein and the building is a dwelling (see, Penal Law § 140.25). Entry is established when the person or any part of his body intrudes within the building (see, People v. King, 61 N.Y.2d 550; People v Daye, 150 A.D.2d 481). In view of the complaining witness's uncontradicted testimony that she heard someone walking around inside of her home and the defendant's written admission that, after forcing the door open with his shoulder, he turned around and walked out, there is no possibility that the defendant was guilty of attempted burglary in the second degree but not burglary in the second degree (see, People v. Lewoc, supra).
The defendant's remaining contentions are unpreserved for appellate review (see, CPL 470.05). Mangano, P.J., Copertino, Joy and Altman, JJ., concur.