In People v. Bentley, 112 A.D.2d 109, 492 N.Y.S.2d 381 (1st Dept 1985), defendant was convicted, inter alia of criminal possession of a controlled substance in the second degree and his sentence and conviction were reversed with that count being dismissed from his indictment.
The court held that defendant's conviction for criminal possession of a controlled substance in the second degree must be reversed and that count of the indictment dismissed because the wholly circumstantial evidence of constructive possession of the heroin found on a garage roof below the apartment the defendant was arrested in was insufficient to prove defendant's guilt beyond a reasonable doubt.
'"Possess"' means to have physical possession or otherwise to exercise dominion or control over tangible property." (PL § 10.00 .)
The record is barren of any direct evidence that defendant had actual physical possession of the heroin at any time.
The circumstantial evidence adduced at trial was insufficient to provide the requisite degree of proof that defendant had constructive possession of the drugs which were found the day after his arrest on the outdoor garage roof below his apartment.
When the evidence is entirely circumstantial, it must appear that the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and that the evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence.
In People v. Williams, 135 A.D.2d 763, 522 N.Y.S.2d 667 (2nd Dept., 1987), defendant was convicted of felony drug possession charges and criminally using drug paraphernalia in the second degree.
The 2nd Department reversed the judgment of conviction and dismissed the indictment, stating:
The evidence failed to show that the defendant was either in actual or constructive possession of the cocaine and narcotics paraphernalia found in his friend's apartment by police officers executing a search warrant.
The defendant was neither the lessee nor a resident of the apartment, and, although he slept on the front porch a few times, his mere presence in a room where the contraband was located is not sufficient to support his conviction of the crimes charged.