(dissenting). Respectfully, I must dissent because the evidence was not legally sufficient to support defendant’s conviction for criminal possession of a controlled substance in the third degree. The prosecution theory was based upon defendant’s constructive possession of cocaine found, pursuant to a consent search, in the closed drawer of an end table in an apartment leased to an acquaintance of the defendant. There was no testimony that defendant actually possessed either the contraband seized or a bag containing a white powdery substance which the codefendant carried into the apartment. Thus, it was incumbent upon the People to establish that defendant exercised dominion and control over the contraband or over the apartment or the area in which the contraband was found (see, Penal Law § 10.00 [8]; People v Watson, 56 NY2d 632; People v Simon, 107 AD2d 196, 197).
Defendant, however, was only an occasional visitor to the apartment and had no proprietary interest in it (cf., People v Cicero, 106 AD2d 901, appeal dismissed and cert denied 472 US 1003). The inferences drawn by the majority to support defendant’s guilt are unjustified and do not exclude to a moral certainty every conclusion other than defendant’s guilt which *987is required when as here, the People’s evidence is wholly circumstantial (see, People v Kennedy, 47 NY2d 196, 202). The fact that defendant accompanied the codefendant to the apartment is not indicative of defendant’s guilt (see, People v Ortiz, 126 AD2d 677). Essentially then, the People’s case of defendant’s constructive possession was based on nothing more than defendant’s presence in the apartment where the cocaine was found. This is legally insufficient to establish that defendant exercised dominion and control over the cocaine (see, People v Reyes, 126 AD2d 681; People v Rodriguez, 104 AD2d 832). Mere presence at the scene of a crime, even with knowledge of its perpetration, does not render the observer accessorially liable (see, People v La Belle, 18 NY2d 405, 412; People v Reyes, 82 AD2d 925, 926).
Moreover, even if the evidence of defendant’s guilt of criminal possession was established, it clearly was not so overwhelming to render harmless the error of improper bolstering found in the appeal of the codefendant and similarly present here (see, People v Torres, 134 AD2d 902). Accordingly, the judgment should be reversed and the indictment dismissed. (Appeal from judgment of Supreme Court, Monroe County, Mark, J. — criminal possession of controlled substance, third degree.) Present — Dillon, P. J., Green, Pine, Balio and Davis, JJ.