(dissenting). I do not agree that this conviction can be sustained.
The facts which led to the acts charged are as follows: On June 19, 1971, at about 6:45 p.m., three police officers were cruising in a patrol car when their suspicions were drawn to a parked “ gypsy cab ” which had all of its doors locked, its windows closed, and one occupant seated in the rear. Upon closer observation, one of the officers saw a .25 caliber handgun in plain view on the driver’s seat. The occupant, one Santiago, was induced to leave the cab and then arrested. A subsequent search uncovered 15 glossine envelopes containing heroin in his trouser pocket. As the officers then proceeded to search the cab, they attracted a crowd which began to assemble around the vehicle. Defendant, who had been playing stickball nearby, noticed the crowd near his cab and went to investigate. Upon his admission to ownership of the vehicle, he was questioned concerning the drugs found on Santiago and the gun found on the seat. Although he denied having any knowledge about either item, he was also placed under arrest and taken, with Santiago, to the station house. There a critical conversation between defendant and Santiago, conducted in Spanish, was allegedly overheard by a Spanish-speaking police officer. To the best of the officer’s recollection “the defendant Diaz asked the other fellow, Santiago * * * to take the burden of the evidence ’ ’ and “that he would take care of him.” It should be parenthetically noted at this point that I find no justification for the District Attorney’s interpretation of such request in his brief hereon as one “ to take the burden of whatever evidence was discovered.” (Emphasis supplied.) Thereafter, the impounded vehicle was searched for any valuables needed for safekeeping and inventory and a brown paper bag, containing *387347 glossine envelopes of heroin, was found underneath the upholstery of the front seat on the passenger side.
Defendant and Santiago were later indicted for possession of the heroin and of the pistol, while acting in concert with each other. Santiago has absconded and is presently a fugitive. Defendant testified in his own behalf and denied all culpability and of ever asking Santiago to assume any responsibility herein. He claimed that he left his cab unlocked with the windows half open when he went off to join the stickball gáme and, although knowing that Santiago was wáiting to be driven home, denied giving him permission to enter his taxicab. The jury convicted defendant of £ ‘ knowingly and unlawfully possess [ing] ” a narcotic drug of a specified aggregate weight (Penal Law, § 220.15); but acquitted him of the gun charge.
The prosecution does not rely on any .statutory presumption in this case and it clearly failed to prove any actual possession. The only basis for sustaining this conviction, then, is on a theory of constructive possession. Although I find no definitive decision upholding guilt on such theory, the indications are that under certain circumstances it may be permissible. (Cf. People v. Reisman, 29 N Y 2d 278; People v. Schriber, 34 A D 2d 852, affd. 29 N Y 2d 780.) Nevertheless, on this record I find the evidence insufficient to support the conviction on any basis. Absent physical possession, “ dominion or control ” must be shown. (Penal Law, § 10.00, subd. 8.) No connection was shown between defendant and the contraband found secreted under the seat of his cab other than ownership of the vehicle. The People contend that such ownership, plus proximity and the “ express admission of guilt ” suffice. But I fail to see where “ proximity ” was shown or how it adds any weight to the evidence; and I find no guilty admission to have been here made. Even if we credit the police officer’s version of what he overheard, it would appear from the record that defendant was only referring to the gun and, perhaps, the narcotics found in Santiago’s pocket. There is no basis for any assumption that he was also referring to a larger quantity of drugs which were later found, but concerning which he denied any knowledge. Moreover, in order to uphold this conviction we must not only find that defendant is deemed possessed of everything found in his cab, although he left it open and unattended for several hours, but that he knew of its presence. I have, of course, taken note of the Court of Appeals’ recent statement that “ generally, possession suffices to permit the inference that the possessor knows what he possesses, especially, but not exclusively, if it is *388in Ms hands, on his person, in his vehicle, or on his premises ’ ’ and that ‘ ‘ knowledge * * * may be shown circumstantially ”. (People v. Reisman, supra, p. 285.) However, the Beisman case involved the conviction of a person in actual possession of a package of marijuana and one of the questions involved was his knowledge of the contents of such package. In People v. Nettles (23 Ill. 2d 306, 308-309, cert. den. 369 U. S. 853), quoted with approval in Beisman, the Illinois Supreme Court stated: “ We are of the opinion, therefore, that where narcotics are found on the premises under the control of defendant, this fact, in and of itself, gives rise to an inference of knowledge and possession by him which may be sufficient to sustain a conviction for unlawful possession of narcotics, absent other facts and circumstances which might leave in the mind of the jury * * * a reasonable doubt as \to his guilt.” (Emphasis supplied.) It would, therefore, appear that immediate control must first be shown before any inferences may be drawn. (Cf. People v. Nettles, supra; People v. Schriber, supra.) And, while knowledge of possession may be established by circumstantial evidence, such evidence must, of course, still exclude to a moral certainty the hypothesis of innocence. (People v. La Belle, 18 N Y 2d 405; People v. Powell, 39 A D 2d 531.) Great emphasis has been placed on the location of the drugs. However, the arresting officers made no attempt to insert, from the rear seat, a paper bag containing any substance underneath the upholstery of the front seat; nor was it demonstrated that this could only be done with considerable effort. While the People ridicule the suggestion that the bag of drugs may have been hidden in the vehicle by someone else in the hope of retrieving it at a later date, it should be recalled that defendant operated a vehicle for hire and, therefore, access to it could be fairly easily obtained. Under the circumstances here disclosed, where defendant’s cab was left open and unattended on a public street for several hours and another person, without permission, was found therein in possession of narcotics on his person, I find the evidence adduced legally insufficient to establish defendant’s guilt of “possession” beyond a reasonable doubt. Accordingly, the judgment appealed from should be reversed and the indictment dismissed.
McGivern, J. P., and Kupperman, J., concur with Tilzer, J.; Murphy, J., dissents in an opinion in which Nunez, J., concurs.
Judgment, Supreme Court, Bronx County, rendered on April 28,1972, affirmed.