Opinion
August 25, 1994
Appeal from the Supreme Court, New York County (Paul Bookson, J.).
According to the police officer who testified at trial, defendant was observed in possession of a Lerner's shopping bag while standing with a companion in the doorway of 2174 Amsterdam Avenue. He took something from his waist area and put it in the bag. His companion then walked to the sidewalk, looked both ways and motioned to defendant to join him. As the two men walked down Amsterdam Avenue they met a third man, later identified as Leonardo Martinez, to whom defendant handed the bag. After a brief exchange of words, Martinez entered 2170 Amsterdam Avenue. Moments later, he was observed leaving the back entrance of the building and dropping the bag on a nearby stoop. When the police recovered the bag, it was found to contain 250 glassine envelopes containing heroin bundled into packets of 10 with rubberbands, a black plastic zip lock bag containing what appeared to be marijuana, a blue box containing 19 live rounds of ammunition and close to $1,500 in cash. All three men were charged with possession of the heroin, but defendant proceeded to trial alone.
Since the officers did not observe the contents of the bag while it was in defendant's possession, his possession of the contents of the bag when it was recovered rests solely upon circumstantial evidence. The proper analysis for application of the reasonable doubt standard in a case which rests solely upon circumstantial evidence is that the "`hypothesis of guilt should flow naturally from the facts proved, and be consistent with them; and the facts proved must exclude "to a moral certainty" every reasonable hypothesis of innocence'" (People v. Ford, 66 N.Y.2d 428, 441, quoting People v. Benzinger, 36 N.Y.2d 29, 32). Thus, in this case, in order to find defendant guilty beyond a reasonable doubt, the jury would have to have found that there was no reasonable possibility that Martinez had had the heroin in his possession and had taken the opportunity, while inside the building, to place it inside the bag with the other items.
The only evidence offered by the prosecution which was relevant to the validity of this hypothesis was testimony concerning the shape and configuration of the bag before it was taken into the building by Martinez. However, upon our review of the facts (People v. Bleakley, 69 N.Y.2d 490), we find that the testimony concerning the shape and size of the bag as observed by a police officer standing 350 feet away was far too speculative upon which to rest a finding that the bag must have contained the heroin in addition to the other items later found in the bag. The jury's necessary finding that the heroin could not have been put in the bag after the bag left defendant's possession was therefore against the weight of the credible evidence and defendant's conviction should be reversed pursuant to CPL 470.15 (5) and the indictment dismissed.
Concur — Murphy, P.J., Carro, Ellerin and Nardelli, JJ.