People v. Sands , 260 N.Y.S.2d 492 ( 1965 )

Copozzoli, J.

(dissenting). On the basis of the record now

before us I am of the opinion that defendant’s possession was not conclusively shown and, therefore, his guilt was not established beyond a reasonable doubt.

The record indicates the following: The slips which form the basis of this prosecution were found in a white envelope which was seized from a self-serving ice cream freezer, located in the rear portion of a stationery or candy store, and which was used by the public. The officer saw five or six people go to the freezer and take objects out. He could not see their hands when inside the freezer and he did not know whether or not they had anything in their hands when they were placed in the freezer. In addition, when the officer entered the store both defendant and his codefendant, Godfrey, were behind the counter and Godfrey was also seen going to the freezer and placing his hand therein. The officer never saw defendant handle the white envelope, put any slip of paper in the envelope, and could not identify any slip of paper that was found therein. He did not know whether there were any slips of paper in the freezer outside of the envelope as he did not make any further search.

While the officer testified that he could see whether the people put anything into the ice cream freezer and that they did not, such testimony, while in itself incredible, is completely negated by his testimony that he could not see the hands of these people when inside the freezer and that he did not know whether or not they had anything in their hands at such times.

It is undisputed that actual, physical possession of the incriminating papers was not shown. Since five or six other persons, whose possession was not excluded, used the freezer in which these papers were found (which freezer was also used by the codefendant, Godfrey), constructive possession by the defendant was not established beyond a reasonable doubt. (People v. Mitchell, 237 N. Y. S. 2d 775 [App. Term, 1st Dept.] ; People v. Ledwon, 153 N. Y. 10.)

For the reasons hereinabove expressed I dissent from the conclusion reached by my colleagues and vote for a reversal of the conviction and a dismissal of the information.

Gold, J., concurs in opinion by Tilzer, J. P.; Copozzoli, J., dissents in memorandum.

Judgment of conviction affirmed.