(dissenting). Appellant is presently serving an 8-to-25-year indeterminate sentence following his conviction, after a jury trial, of criminal possession of a dangerous drug in the second degree and criminally using drug paraphernalia.
Shortly before midnight on August 3, 1972, several members of the New York Joint Task Force executed a previously obtained warrant authorizing the search of defendant’s apartment on East 86th Street in Manhattan. After defendant unlocked the door, the officers entered and found therein, in addition to defendant, three women sitting on a couch in the living room and defendant’s brother, Jose Tirado, "sitting on the bowl” in the bathroom. In the pockets of a bathrobe lying on the bathroom floor the officers found two plastic bags containing approximately 13 ounces of cocaine. Searching further, the officers found quantities of drug adulterants and other drug paraphernalia; and a large sum of cash.
After receiving an unexceptionable charge from the trial court, including the standard to be applied when circumstantial evidence is relied upon to support a guilty verdict, the jury retired to deliberate. Shortly thereafter the jurors presented the following inquiry: "Does the sole fact that narcotics *197are found present in the apartment of the defendant constitute possession?”
The court responded: "no”, and then repeated, briefly, its instructions regarding constructive possession and circumstantial evidence. After the jury again retired to deliberate, the court refused the People’s request for "the charge found in Reisman ” (People v Reisman, 29 N Y 2d 278) on the ground that the facts in Reisman were distinguishable and the "charge” requested dictum.
Approximately two and one-half hours later, an obviously still disturbed jury asked the court to reread its charge, define the reasonable doubt concept and "expound on the laws of circumstantial evidence”. After some colloquy among the Trial Judge, the prosecutor and defense counsel, the court, after differentiating between physical and constructive possession, over defendant’s objection, advised the jurors, inter alia:
"Possession may, in addition, be either joint or individually, or individual or joint. If you find either a physical possession by the defendant or a constructive possession of the defendant was a possession that he shared with others, you may find that he was in joint possession of that property with the others.
"Joint possession is the possession of each of those who jointly possess the property. The fact that others may have jointly possessed property with the defendant would not make his possession any the less possession within the meaning of the Penal Law.
"The joint possession is the possession of each of those who jointly possess property.”
* * *
"In other words, possession may be physical possession or constructive possession. Constructive possession is possession just as much as physical possession. Joint possession is possession of all who jointly possess.”
Thirty minutes later, the jury returned a verdict of guilty.
In my view, the portion of the supplemental charge dealing with joint possession was clearly erroneous. The instant indictment was filed against defendant alone. Defendant was not charged with jointly possessing the narcotics and the paraphernalia with his brother, or any of the three women found in his apartment.
In the case at bar, actual physical possession, by anyone, *198was not established. The cocaine was found in the pockets of a bathrobe lying on the floor of the bathroom. The bathroom had been occupied by defendant’s brother, Jose, when the police arrived and threatened to "blow the locks off” the door if it was not opened. To instruct the jury, under such circumstances, that defendant could be convicted if they believed he jointly possessed the contraband with his brother, Jose, or anyone else, was prejudicial error.
The presumption of knowing possession applicable to the presence of a controlled substance in an automobile has never been statutorily or judicially extended to premises. (Penal Law, §220.25, subd. 1; see, also, Penal Law, § 265.15 with respect to presumptions of possession applicable to firearms and other dangerous weapons.)
Even People v Nettles (23 111. 2d 306, 308-309), cited with approval in People v Reisman (supra) and relied on so heavily by respondent, held: "Where narcotics are found on 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.)
That the jurors had such a reasonable doubt in this case is manifest from the questions they asked. Only the improper charge as to "joint possession” dispelled such doubt; and permitted them to then heed the court’s proper instruction regarding the standard to be satisfied in order to sustain a conviction which, as here, depends exclusively on circumstantial evidence. (People v Williams , 35 N Y 2d 783; People v Cleague, 22 N Y 2d 363.) In sum, the circumstantial evidence adduced in this case does not establish defendant’s guilt by "overwhelming proof’; and, in my view, there is a "significant probability” that appellant would have been acquitted had it not been for such error in the charge. (People v Crimmins, 36 NY2d 230, 242.)
In light of the foregoing, the judgment appealed from should be reversed and a new trial directed.
Markewich, Capozzoli and Nunez, JJ., concur with Stevens, P. J.; Murphy, J., dissents in an opinion.
Judgment, Supreme Court, New York County rendered on January 9,1973, affirmed.