People v. Burns

— Judgment unanimously affirmed. Memorandum: Viewed in the light most favorable to the People (see, People v Contes, 60 NY2d 620, 621), the proof was sufficient to establish defendant’s entry into the victim’s apartment. Under Penal Law § 140.00 (5), the element of entry is established "when a person intrudes within a building, no matter how slightly, with any part of his or her body” (People v King, 61 NY2d 550, 555; see also, People v Fraticelli, 172 AD2d 622, 623, lv denied 77 NY2d 995; People v Bright, 162 AD2d 212, lv denied 76 NY2d 938).

*1016We reject defendant’s contention that the photo array shown to the victim was impermissibly suggestive. The photographs portray men with similar physical features. The fact that defendant’s photograph has a slightly lighter background than the others does not support the conclusion that the identification procedure was unduly suggestive (see, People v Floyd, 173 AD2d 211, 212, lv denied 78 NY2d 966; People v Emmons, 123 AD2d 475, 476, lv denied 69 NY2d 827). (Appeal from Judgment of Erie County Court, Rogowski, J. — Criminal Trespass, 2nd Degree.) Present — Callahan, J. P., Green, Pine, Boehm and Doerr, JJ.