As defendant had previously been convicted of a crime, he was charged with criminal possession of a weapon in the third degree ( see Penal Law § 265.02 [1]). Although firearms were not included within the search warrant, discovery of the shotgun was within the scope of the warrant, as it specifically allowed the police to open and search the locked cabinet ( see People v Tutora, 116 AD2d 607, 608). Upon lawfully opening the cabinet and inadvertently discovering the gun, its "incriminating character . . . [was] immediately apparent," and thus the plain view doctrine applied to its discovery ( People v Brown, 96 NY2d 80, 89; see People v Lamont, 21 AD3d 1129, 1131, lv denied 6 NY3d 835; People v Cranmer, 167 AD2d 566, 567, lv denied 11 NY2d 904; compare People v McCullars, 174 AD2d 118, 121, appeal dismissed 80 NY2d 800). Defendant's further argument that Penal Law § 265.02 violates the Second Amendment of the US Constitution is unpreserved and, in any event, lacks merit ( see People v Perkins, 62 AD3d 1160, 1161, lv denied 13 NY3d 748; see also People v Hughes, 83 AD3d 960, 961-962).

Taking a more prudent approach, the police suspended their search, conducted a further inquiry concerning the suspicious items and then obtained a second search warrant specifically authorizing seizure of the goods (cf., People v. McCullars, 174 A.D.2d 118, appeal dismissed 80 N.Y.2d 800). Because the items were seized pursuant to a lawful search warrant, the evidence was properly admitted at trial. We further find, upon review of the trial record, that there was sufficient evidence corroborating the accomplice testimony presented.

"The 'plain view' doctrine permits seizure of an item not specifically referred to in the search warrant if the officer was lawfully in a position to observe the item, observation was inadvertent rather than anticipated, and the incriminating character of the items was immediately apparent" ( People v Basilicato, 64 N.Y.2d 103, 115). Here, police officers executing the warrant recognized the unenumerated items as the fruits of burglaries under investigation, and their discovery of the items was unanticipated ( see, People v. Sage, 204 A.D.2d 746, 747, lv denied 84 N.Y.2d 832; cf., People v. McCullars, 174 A.D.2d 118, appeal dismissed 80 N.Y.2d 800).

The "plain view" doctrine does not apply in the circumstances of this case. It cannot be said that discovery of the "buy money" was inadvertent because the police, who had arranged for the controlled buy earlier that same evening, knew that the "buy money" would be at the premises and could have included the money in the warrant request (see, People v McCullars, 174 A.D.2d 118, 122, appeal dismissed 80 N.Y.2d 800). The money acquired its status as contraband because of the officers' prior knowledge of the marked bills used in the controlled buy. Furthermore, the police could have easily obtained a second warrant with little or no danger that the money would have been removed in their absence (see, People v Baker, supra, at 320; People v McCullars, supra). The error was harmless, however, because the "buy money" was only probative of defendant's intent to sell the cocaine and there was abundant evidence of defendant's intent to sell from other sources (see, People v Crimmins, 36 N.Y.2d 230).

The police executed a search warrant, permitting the officers to search for any evidence or proceeds of a robbery. Some of the items seized were specifically enumerated in the search warrant, and the remaining seized items were lawfully recovered by the police pursuant to the "plain view" doctrine (see, People v Basilicato, 64 N.Y.2d 103, 115; People v McCullars, 174 A.D.2d 118, 122). The defendant additionally contends that the court erred in admitting into evidence an accomplice's statement made to the police, just after her arrest, on the ground that the statement impermissibly bolstered the accomplice's trial testimony.

The OAG acknowledges that, in response to search warrants executed in connection with this matter, Google forwarded electronic information which included a calendar that permitted access to dates of outside those specified in the search warrants. All items of information that exceed the scope of the warrants are suppressed and shall not be admissible at trial (see generally, People v. McCullars, 174 AD2d 118, 121 [3d Dept. 1992]). In accordance with their Discovery, Rosario and Brady obligations, the People are directed to provide the defense with access to all items in their possession which were obtained in connection with the warrants issued by Judge Barbara G. Zambelli.

Even if the reference to the keys in the second search warrant application were a necessary allegation, the search warrant would nevertheless be valid. While at first blush it would appear that the keys could have been recovered on the basis of the first search warrant's application to search the defendant's vehicle, this is not the situation in the instant case, because the keys were not designated as items which could be seized (People v. Baker, 23 N.Y.2d 307; People v. McCullars, 174 A.D.2d 118, app dism 80 N.Y.2d 800). However, assuming the keys were illegally seized, they would have inevitably been discovered by the police (People v. Turriago, 90 N.Y.2d 77,rearg den 90 N.Y.2d 936) as secondary evidence (People v. Stith, 69 N.Y.2d 313) during the booking procedure after the defendant's arrest (People v. Perel, 34 N.Y.2d 462).

Even if the reference to the keys in the second search warrant application were a necessary allegation, the search warrant would nevertheless be valid. While at first blush it would appear that the keys could have been recovered on the basis of the first search warrant's application to search the defendant's vehicle, this is not the situation in the instant case, because the keys were not designated as items which could be seized (People v Baker, 23 NY2d 307; People v McCullars, 174 AD2d 118, appeal dismissed 80 NY2d 800). However, assuming the keys were illegally seized, they would have inevitably been discovered by the police (People v Turriago, 90 NY2d 77, rearg denied 90 NY2d 936) as secondary evidence (People v Stith, 69 NY2d 313) during the booking procedure after the defendant's arrest

Moreover, in analyzing the rationale for the plain view exception and applying it to the facts in that case, the court adopted much of the Supreme Court's reasoning in Horton (supra). Defendant nevertheless argues that inadvertence is still required in New York, citing People v. McCullars ( 174 A.D.2d 118 [3d Dept. 1992]) and People v. Farmer ( 198 A.D.2d 805 [4th Dept. 1993]). This court does not find these precedents persuasive as the Third Department repeatedly cites Spinelli and the Fourth Department cites the Third, and both decisions predate Diaz (supra; see also, People v. McMahon, 238 A.D.2d 834 [3d Dept. 1997]).

Although the New York Court of Appeals has cited Horton with approval in a case not involving a search warrant (People v Diaz, 81 N.Y.2d 106, supra), some intermediate appellate courts have continued to adhere to an inadvertent discovery requirement. (See, People v McCullars, 174 A.D.2d 118 [3d Dept 1992]; People v Farmer, 198 A.D.2d 805 [4th Dept 1993]; but see, People v Manganaro, 176 A.D.2d 354 [2d Dept 1991].) Even if inadvertent discovery is a requirement under New York law, it is readily satisfied in this case.