Opinion
November 16, 1993
Appeal from the Supreme Court, Bronx County (Joseph Fisch, J.).
Even when viewed as it must be on appeal, in the light most favorable to the prosecution (see, People v Montanez, 41 N.Y.2d 53, 57), the evidence was insufficient to prove the defendant's guilt beyond a reasonable doubt.
The defendant was apprehended by the police just moments after entering the apartment where the weapons and hypodermic instrument he was charged with possessing were found; the weapons were found secreted under a mattress and the hypodermic needle upon a dresser. As the defendant was not in actual possession of the contraband the prosecution proceeded on a constructive possession theory. However, the defendant's dominion and control over the premises and, accordingly, over the contraband found there, although essential to the People's proof (see, Penal Law § 10.00; People v Watson, 56 N.Y.2d 632, 634), was never established. Although the defendant possessed the key to the apartment, he was not the tenant of record and, indeed, there was no proof that he had spent more than one night there. Moreover, at the time of the defendant's arrest he had only just returned to the apartment, having been absent from the premises for the preceding three hours. Plainly, the defendant's single, relatively brief and discontinuous use of the apartment was not a sufficient predicate for the inference that he possessed what was found there. The People's proof in no way excluded the possibility that the contraband had been placed in the apartment without the defendant's knowledge either before his overnight stay or during his undisputed three hour absence from the premises immediately prior to his arrest. The People's failure in this wholly circumstantial case, to eliminate these reasonable and, indeed, obvious hypotheses consistent with the defendant's innocence compels the conclusion that the defendant's guilt was not proved beyond a reasonable doubt (see, People v Giuliano, 65 N.Y.2d 766, 767-768; People v Way, 59 N.Y.2d 361, 365; People v Kennedy, 47 N.Y.2d 196, 202).
Were we not dismissing the indictment on the ground of evidentiary insufficiency, we would nevertheless reverse and order a new trial based upon the trial court's failure to deliver a circumstantial evidence charge. As the evidence pertaining to the counts upon which the defendant was convicted was wholly circumstantial, such a charge was essential (People v Sanchez, 61 N.Y.2d 1022; People v Gonzalez, 54 N.Y.2d 729; People v Davis, 153 A.D.2d 949, 951, lv denied 75 N.Y.2d 769). Indeed, had the jury been instructed, as it should have been, that to support a conviction, the evidence, in light of its circumstantiality, had to exclude beyond a reasonable doubt every reasonable hypothesis of innocence (see, People v Ford, 66 N.Y.2d 428, 441; People v Sanchez, supra, at 1024; People v Gonzalez, supra; People v Morris, 36 N.Y.2d 877), the need for this appeal might well have been avoided.
Concur — Murphy, P.J., Sullivan, Kupferman and Nardelli, JJ.