Opinion
(1686) KA 99-05418
December 21, 2001.
(Appeal from Adjudication of Monroe County Court, Connell, J. — Youthful Offender.)
PRESENT: PIGOTT, JR., P.J., WISNER, HURLBUTT, KEHOE AND GORSKI, JJ.
Adjudication unanimously affirmed.
Memorandum:
Defendant appeals from an adjudication following a bench trial finding him guilty of robbery in the first degree (Penal Law § 160.15) and other crimes. The victim was robbed at gunpoint in the City of Rochester by two men riding mountain bikes. Two months later the victim observed one of the robbers, whom he identified as defendant, riding a black mountain bike. He telephoned the police, who arrived at the scene, placed the victim in the patrol car and searched for defendant. The victim observed defendant standing with other people in front of 100 Ambrose Street. Defendant was secured and brought to the police car, where he was identified by the victim. The police then arrested defendant and, without obtaining a warrant, seized a black mountain bike from the front yard of 104 Ambrose Street, which was defendant's residence. The bicycle was transported to police headquarters and was later identified by the victim as the bike defendant had been riding at the time of the robbery.
We agree with defendant that County Court erred in denying his motion to suppress the mountain bike. Because the incriminating nature of the bicycle was not readily apparent, the officer's seizure of the mountain bike cannot be justified under the plain view doctrine ( see, People v. Diaz, 81 N.Y.2d 106, 110; People v. Spencer, 272 A.D.2d 682, 683, lv denied 95 N.Y.2d 858; see also, Horton v. California, 496 U.S. 128, 136-137). We conclude, however, that the admission of the mountain bike in evidence at trial is harmless error. The victim identified defendant as the perpetrator of the robbery and, upon our review of the record, we conclude that there is no reasonable possibility that the error might have contributed to the finding of guilt ( see, People v. Crimmins, 36 N.Y.2d 230, 237).