On this appeal from a judgment of conviction for criminal possession of a controlled substance in the first degree and criminal use of drug paraphernalia in the second degree, pursuant to which sentences of 15 years to life and time served respectively were imposed, two basic issues are presented.
1. Were the narcotics and narcotics paraphernalia for possession of which the defendant was convicted obtained through an unlawful search and seizure?
2. Did the evidence, admittedly circumstantial in character, exclude to a moral certainty every reasonable hypothesis consistent with innocence?
In August, 1973, the upstairs apartment of a two-family residence at 3343 Paulding Avenue in The Bronx became vacant. The landlord, Oliver Stephen (not a resident of the building) engaged Osborne Real Estate to rent it.
In October, 1973, Ms. Hall of that agency rented the apartment on a month-to-month basis to a man named Roosevelt Anderson. Anderson first came to the Osborne office on October 11 when he made a down payment on the apartment for which he received a rent receipt. The rental was completed during his second visit on October 13, 1973 when he made a second payment, adding up to one month’s rent plus security, received a second rent receipt, and was given the keys to the apartment. During the intervening period Ms. Hall had verified Anderson’s employment reference in a telephone call.
Ms. Hall’s testimony made it explicitly clear that the defendant was not the Roosevelt Anderson to whom the apartment had been rented.
*612At about 1:00 a.m. on November 3, the downstairs tenant telephoned Mr. Stephen to complain of "strange noises” in the upstairs apartment. As a result of that call, and earlier anonymous calls about "traffic going through his house” Stephen went to the second floor apartment, knocked on the door, and, receiving no response, entered with his passkey.
The apartment was sparsely furnished. During a search Stephen found a large carton on top of a wooden closet in one of the bedrooms, containing glassine envelopes and a white powdery substance he believed to be narcotics. He called the police who arrived at 6:50 a.m. Stephen escorted them to the second floor apartment and led them to the bedroom where he had found the box. He removed a glassine envelope from the box and showed it to the officers who then took the box from the closet, with its contents, and brought it to the station house.
After a chemical test conducted at the station house suggested the presence of cocaine (later to be proved erroneous, the narcotics in fact being heroin) a search warrant was obtained. The box and its contents were returned to the apartment, which had been previously secured by the police. A thorough search of the apartment shortly after 5:00 p.m. resulted in the finding of substantial quantities of heroin in a panel ceiling in the bathroom and in the refrigerator.
At approximately 5:30 p.m. the defendant, followed seconds later by a man named Jeffrey Jones, entered the apartment. The defendant turned on the light and apparently registered surprise on seeing cigarette ashes in the sink. The two men were then arrested. The defendant had in his possession a set of keys to the apartment, the two rent receipts described above, a business card from the realty agent on which was noted the address of the landlord, and a gun. Jones was carrying a box which contained a drill in addition to two large plastic bags with heroin.
Only the defendant was indicted with regard to the contraband found in the apartment.
Jones testified on behalf of the defendant and stated that earlier during the day a man named Rose gave him the box, the rent receipts and a set of keys to the apartment. As they arrived at the building Jones had given the keys to Robertson, who also had taken from the sun visor of their car the rent receipts and the business card.
On the issue of the lawfulness of the search, it is not legally *613significant whether the entry by the landlord into the apartment at 3:00 a.m. was lawful, since the constitutional requirements of the Fourth Amendment have no application to the actions of private individuals.
It is, of course, fundamental that the finding of narcotics in an apartment by a private citizen does not authorize, in the absence of exigent circumstances not claimed to be present here, an entry into and search of that apartment by the police. (See Weeks v United States, 232 US 383; Mapp v Ohio, 367 US 643; People v Gonzales, 39 NY2d 122.) Nor may such a police entry and search be authorized by a landlord, even one who himself may have had a lawful right to enter the apartment of a tenant for purposes connected with their relationship. (Stoner v California, 376 US 483.)
In Stoner, the Supreme Court said the following (pp 489-490):
”[T]he Court has held that a search by police officers of a house occupied by a tenant invaded the tenant’s constitutional right, even though the search was authorized by the owner of the house, who presumably had not only apparent but actual authority to enter the house for some purposes”.
"[T]o uphold such a search without a warrant would leave tenants’ homes secure only in the discretion of their landlords.”
I am in agreement that the search warrant here could properly have been issued on the basis of those observations of the landlord himself that were communicated to the court. A troublesome problem here, however, becomes apparent from an examination of the minutes accompanying the issuance of the search warrant. The issuing Judge was understandably troubled by the apparent illegality of the police entry and the knotty problem presented of whether the situation could somehow be rectified to permit lawful seizure of the drugs. The minutes make clear that the Judge issued the warrant, not because he had made a judgment that the landlord’s observations were sufficiently reliable to justify it, but rather because he concluded erroneously that the police entry could be sustained on the factual finding that the landlord had opened the door.
In People v Reisman (29 NY2d 278) relied upon in the court’s opinion to sustain the warrant, the court upheld the arrest there under challenge as the result of antecedent illegal police activity on the view that it was justified by other *614information available to the arresting officer and that the arrest would have in fact occurred if only that other information had been available. It is by no means clear to me that this principle may appropriately be extended to sustain a warrant where the issuing Judge, though aware of the landlord’s observations, gave his approval explicitly on the basis of police observations following their unlawful entry into the apartment. That issue, however, need not be resolved in this case, since I think it clear that the conviction, even assuming the contraband was secured lawfully, cannot stand.
Turning to the issue of legal sufficiency, it is apparent that the evidence presented was circumstantial in character. The applicable rules are, of course, familiar.
The facts from which the controlling inferences are drawn must themselves have been proved and not presumed. (See, e.g., People v May, 290 NY 369, 371.)
The circumstances must be based upon clear and convincing evidence and not conjecture. (See People v Foley, 307 NY 490, 492-493.)
In the words of People v Lagana (36 NY2d 71, 73-74): "[F]or a conviction based exclusively upon circumstantial evidence to stand, 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.”
The District Attorney has attempted to sustain the conviction on a theory of constructive possession primarily associated with People v Nettles (23 Ill 2d 306). In Nettles, the court upheld the conviction for possession of narcotics of a defendant actually present in the apartment with others when the narcotics were found and who admitted that he had shared the apartment with still another person although he denied having paid the rent.
The court stated the basic rule of law in the following words (p 307): "In order to support a conviction for unlawful possession of narcotics, the People must establish knowledge on the part of the defendant of the presence of narcotics and must also establish that the narcotics were in the immediate and exclusive control of the defendant.”
Commenting on the special character of the narcotics traffic the court noted (p 308): "Human experience teaches that *615narcotics are rarely, if ever, found unaccountably in a person’s living quarters.”
Finally, the controlling principle was stated as follows (pp 308-309): "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.”
In People v Mack (12 Ill 2d 151), one of two earlier Illinois cases relied upon by the court in Nettles, a conviction was sustained where narcotics were found in an apartment which the defendant admitted renting, and from which the defendant had been observed leaving shortly before the discovery. In People v Embry (20 Ill 2d 331) the other case relied on in Nettles, the defendant was present in the apartment when the narcotics were found and admitted that it was his apartment.
The Nettles, Mack and Embry cases are typical of almost all the unusually large number of Illinois cases dealing with aspects of the problem. Invariably the issue has been the legal sufficiency of evidence to sustain a conviction with regard to someone either present in the apartment at the time the narcotics are discovered or observed to have been in the apartment previously and who in addition was either the lessee of the apartment or had been living in the apartment.
Interestingly, in one Illinois case, the conviction was set aside with regard to a defendant present in an apartment at the time marijuana was found where "no competent evidence was presented showing that the defendant owned, rented or ever lived in the room in question.” (People v Heerwagen, 30 Ill App 3d 144.)
I found no Illinois case in which a conviction was upheld with regard to narcotics found in an apartment where the defendant was not in the apartment at the time nor shown to have been occupying the apartment previously.
Nor is there any New York case in which a conviction has been sustained under such circumstances. Indeed, very few cases in this State have addressed even the general problem presented in the Illinois cases.
Perhaps the closest case, to the Nettles situation was People v Tirado (47 AD2d 193, affd 38 NY2d 955) in which this court *616sustained the conviction of the lessee of an apartment for narcotics found in the apartment while the defendant was present along with others. This court relied in significant part on the fact of the presence in the kitchen "in plain view, of recognized adulterants and drug paraphernalia” (pp 195-196). In affirming the decision of this court, the Court of Appeals commented that "the circumstances established the operation of a narcotics 'factory’, and the inference that the tenant as well as all those found in the apartment, were engaged in the illicit enterprise, was irresistible” (p 956).
Two other New York cases, not dispositive here because of widely different fact situations, are nonetheless of interest. In People v Schriber (34 AD2d 852, affd 29 NY2d 780) the defendant was the lessee of an apartment which he permitted to be used as a gathering place for marijuana smokers. Friends of the defendant, but not the defendant himself, were present in the apartment when marijuana and related implements were found. The defendant had not lived in the apartment for a week before the search although some of his clothing was still there. His conviction for possession of the marijuana was reversed on the view that the facts did not establish that degree of control of the premises that would give rise to an inference of unlawful possession.
Again, in People v Jefferson (43 AD2d 112) three people in addition to the defendant were present in an apartment in which narcotics were found. During the search, the defendant emerged from a bedroom in his underwear. This court reversed the conviction and dismissed the indictment commenting (p 113): "the defendant did not claim possession of the goods in the apartment * * * and the evidence did not show that defendant was the lessee or exercised such control over the premises that he could be deemed in constructive possession of the contraband found”. (See, also, People v Siplin, 29 NY2d 841.)
In evaluating the evidence in this case, three facts seem to me of primary significance.
1. The apartment had been rented some three and one-half weeks before the narcotics were found to someone other than the defendant. This other person had paid one month’s rent and an additional month’s security.
2. No evidence was presented that identified the defendant, the lessee, or anyone else as having been actually present in the apartment prior to the discovery of the narcotics.
*6173. The defendant, in physical possession of keys to the apartment, the rent receipts that had been given to the lessee, and a business card of the realty company on which was noted the home address of the landlord, came to the apartment some 14-V2 hours after the narcotics were first discovered.
I am in agreement that the jury could have reasonably concluded from the defendant’s possession of the keys, rent receipts, and a business card with the landlord’s home address noted on it that ownership, or partial ownership, of the apartment had been transferred to the defendant by the lessee or an agent of the lessee or a successor in interest prior to the defendant’s arrival. The critical question, of course, is when that transfer occurred. If it had been established beyond a reasonable doubt that the defendant had received these indicia of ownership prior to the discovery of the narcotics, a plausible case for sustaining the conviction would have been made out. Even on that assumption, however, the absence of any evidence placing the defendant in the apartment prior to the finding of the drugs would have made the issue of constructive possession a close one.
I see no way in which the trial evidence can be evaluated to exclude as a reasonable possibility that the defendant acquired an ownership interest in the apartment after the drugs had been found. Indeed, the very fact of the defendant’s physical possession of the rent receipts and the business card at the time of his arrest strongly suggests that he was in fact arriving at the apartment for the first time.
In any event, the clear possibility that the defendant came into possession of the indicia of ownership after the narcotics were found, coupled with the total absence of evidence placing him in the apartment previously, requires reversal of the conviction.
Nothing in Nettles, or any of the cases applying it or addressed to the same problem, provide any support for a finding of constructive possession on these facts. The evidence simply does not establish with sufficient certainty that the defendant had control of the apartment when the narcotics were found, much less the further inference that he had knowledge and control of the narcotics. The "logical gaps,” alluded to in People v Cleague (22 NY2d 363) are here too substantial to sustain the conviction.
The labored trial effort to find a sinister significance in the defendant’s ability to find the light switch without difficulty *618and his alleged surprise at observing ashes in the sink is surely of the slightest possible value. One does not have to be familiar with an apartment to be surprised at observing ashes in the sink, even if it were accepted that he expressed surprise at that observation rather than at the almost simultaneous discovery that others were present in the apartment.
The judgment of conviction rendered below should be reversed and the indictment dismissed.
Kupferman, J. P., Yesawich, and Sullivan, JJ., concur with Lupiano, J.; Sandler, J., dissents in an opinion.
Judgment, Supreme Court, Bronx County, rendered on January 16, 1976, affirmed.