dissents and votes to reverse the judgment *764appealed from, on the law, and to dismiss the indictment, with the following memorandum: I cannot agree with my colleagues that the proof in this purely circumstantial evidence case is sufficient to sustain the guilty verdict. As the majority acknowledges, the People’s burden of proof required that they exclude to a moral certainty every hypothesis other than guilt (see, People v Barnes, 50 NY2d 375; People v Kennedy, 47 NY2d 196; People v Benzinger, 36 NY2d 29).
The police came to defendant’s apartment after an attempt was made to rob him there. They received permission from defendant’s wife to search the apartment as part of their investigation of the attempted robbery and found a quantity of cocaine atop a 10-foot-high armoire in a bedroom shared by defendant and his wife. Neither the defendant nor his wife was present in the apartment when the discovery was made. Both testified at trial and denied knowledge of the cocaine packages found on the armoire. In addition to defendant’s wife, who was tried with him and acquitted of the crimes charged, others had access to the bedroom just before the search: the two robbers, a tenant who was forced to escort the robbers to the defendant’s apartment and the defendant’s 16-year-old son. Any one of them could have placed the drugs on the armoire before the discovery by the police.
Under all the circumstances I conclude that the People failed to sustain their burden of proof that the defendant possessed those drugs. The judgment should be reversed and the indictment should be dismissed.