Crew III, J. (dissenting). We respectfully dissent. County Court found, and we concur, that the police went to defendant’s residence to search for certain specified checks pursuant to a validly issued search warrant. While engaged in that search they observed and seized a pair of glasses, a raincoat and a jacket which were believed to have been worn by defendant during the commission of the crime for which he was tried and convicted. The majority would suppress those items on the ground that their presence on the premises was anticipated by the police and their seizure did not, therefore, come within the "plain view” exception to the warrant requirement (see, People v Spinelli, 35 NY2d 77, 80). There is nothing in the record to suggest that the police anticipated discovery of the articles in question and thereby used the search warrant as a subterfuge to conduct an otherwise impermissible search (see, supra). It is one thing for the police to assume that personal articles of clothing used during the commission of the crime "might” be on the premises as opposed to having a factual basis to afford "probable cause” to believe that such items will be present at the time of the issuance of the warrant. Nothing in the record suggests that the police possessed such knowledge at the time they applied for and obtained their warrant, and we disagree with the majority’s conclusion that the police could have included those items in the warrant request without such a factual predicate. Therefore, once the police were lawfully in defendant’s residence pursuant to the warrant, they were justified in seizing those items that they observed in "plain view” and which they *124had reason to believe constituted evidence of the crime they were investigating (see, People v Jackson, 41 NY2d 146, 150).* We agree with the majority that defendant’s other claims of error are without merit and we would, therefore, affirm the judgment of conviction.
Yesawich Jr. and Casey, JJ., concur with Harvey, J.; Crew III, J., and Mikoll, J. P., dissent in a separate opinion by Crew III, J.
Ordered that the judgment is reversed, on the law, and matter remitted to the County Court of Albany County for a new trial.
It should be noted that the caveat to the "plain view” exception enunciated in Coolidge v New Hampshire (403 US 443) is no longer viable, as the Supreme Court has recently held that the 4th Amendment does not prohibit the warrantless seizure of evidence in plain view even though the discovery is not inadvertent (see, Horton v California, 496 US 128).