—Judgment affirmed. Memorandum: County Court erred in denying the motion to suppress evidence seized from defendant’s bedroom during the execution of a search warrant. Prior to obtaining that warrant, two police officers entered defendant’s bedroom and observed items of clothing. Defendant contends that the People had no lawful right to enter his bedroom and that evidence obtained as a result of that unlawful entry should have been suppressed.
At the suppression hearing, the People maintained that
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defendant’s stepfather, the owner of the residence, consented to the officers’ entry into defendant’s bedroom. The record of the suppression hearing, however, contains no proof that the stepfather consented to that entry. Permission to speak with defendant, given while downstairs in a common area of the residence, did not amount to consent for entry into defendant’s upstairs bedroom
(see, People v Flores, 181 AD2d 570, 571). Further, the People failed to establish that the police reasonably relied upon the stepfather’s authority to consent to an entry of defendant’s bedroom. The fact of ownership, by itself, could not provide a sufficient objective basis for such reasonable reliance where, as here, the bedroom was occupied by a 38-year-old stepson
(see, United States v Whitfield, 939 F2d 1071). The officers’ knowledge that the stepson was 38 years old, together with the facts that the bedroom door was closed and that the stepfather did not open the door but stood to the side as the officers opened the door and entered, warranted some inquiry by the officers concerning the stepfather’s access to, and mutual use of, the stepson’s bedroom
(see, United States v Whitfield, supra). Absent that inquiry, the officers’ reliance upon ownership as the sole basis for authority to invade defendant’s privacy was unreasonable.
The People’s alternative contention, that suppression was not warranted because information obtained by police prior to, and independent of, the unlawful entry and search constituted probable cause for the issuance of the warrant (see, People v Harris, 62 NY2d 706), is raised for the first time on appeal and has not been preserved for our review (see, People v Dodt, 61 NY2d 408, 416; People v Wilson, 175 AD2d 15, 16, lv denied 78 NY2d 1015).
We conclude, however, that the erroneous admission of the evidence was harmless. Proof of defendant’s guilt was overwhelming, and there is no reasonable possibility that the error might have contributed to defendant’s conviction (see, People v Crimmins, 36 NY2d 230, 237).
All concur; Denman, P. J., and Boehm, J., concur in result in the following Memorandum.