dissents in a memorandum as follows: On January 9, 1990, at about 11:30 p.m., police officers responded to a radio run of a person shot at Apartment No. 49 at 109 West 112th Street. When the officers arrived, they knocked on the door of No. 49 but received no answer. However, a male voice coming from Apartment No. 48 called out, "Who is it?” An officer responded that it was the police and requested that the door be opened. The officers immediately heard sounds of running, banging, and breaking glass coming from No. 48. When some of the officers went to the roof and the rear alley to prevent an escape, they saw bags of drugs, empty vials, a scale and a gun being thrown from one of the apartment windows. Shortly after, one of the officers saw a large male figure lean *339out of a window which was near the one from which the items had been thrown but which, unlike the other window, was lighted.
About five minutes later, the door to the apartment was opened by codefendant Christopher Clemente. Clemente’s hands were bleeding. The defendant, Leah Bundy, was standing at the end of a long hallway leading from the front door to the rooms which made up the rest of the apartment. A search of the apartment revealed a clear plastic bag containing 214 vials later determined to contain crack cocaine lying in open view on the floor of one of the bedrooms, which was lighted and furnished. Also found in a hall closet in the apartment were additional quantities of cocaine, beepers, vials, cash, a bulletproof vest, another gun, a ledger with codefendant’s name on it, and several items bearing the name of codefendant’s brother, Henry Clemente. Additionally, the police found in the apartment a photograph of defendant inscribed with the comment, "Leah B. being a bitch”. It was later discovered that a security gate covering one of the windows in a second, unfurnished and unlighted bedroom was bent back and stained with blood.
Clemente had on his person the keys to the apartment and a beeper similar to others found in the apartment.
On this evidence the defendant was convicted not only of possessing the drugs which were found in open view in the lighted, furnished bedroom, but also of the constructive possession of the drugs, guns, scale and empty vials recovered from the alley as well as the additional contraband found in the hall closet and in the empty bedroom. For these crimes, she is serving an aggregate sentence of 15 years to life in prison.
I find that, except as to the count relating to the drugs which were found in open view in the furnished and lighted bedroom, this evidence was insufficient as a matter of law to sustain the conviction, and would therefore reverse.
First, the only count of this indictment as to which the jury was charged with the "drug factory presumption” of Penal Law § 220.25 (2)* was the fifth, which charged her with possession of the drugs found in open view in the furnished bedroom. As to this count, the defendant does not argue that the evidence was insufficient to sustain the conviction.
*340All the other counts charge the defendant with possession of the contraband, i.e., drugs, weapons and drug paraphernalia, thrown from the window of the empty bedroom as well as that found in a hall closet and in the empty bedroom itself. There was no evidence that any of the drugs in these locations were in open view or in close proximity to the defendant and the trial court quite properly did not charge the presumption as to these counts. In spite of this, the majority first attempts to justify its affirmance as to those counts which arose from contraband thrown from the window by subjecting them to the presumption. This would obviously be improper, since the court did not submit these counts on the basis of the presumption and no jury has ever found that the elements of the presumption were satisfied (see, People v Martinez, 83 NY2d 26, 35, cert denied 511 US 1137). Clearly, whether a statutory presumption is to be applied to a particular defendant is a matter to be decided by a trier of fact (People v Lynch, 116 AD2d 56, 60) and not as an afterthought by an appellate court. Moreover, the majority apparently even extends application of the presumption to defendant’s convictions for possessing the weapon and drug paraphernalia thrown from the window, though by its express terms the presumption applies only to possession of delineated controlled substances.
In an attempt to sustain the convictions on these counts by way of the drug factory presumption, despite the absence of any evidence in support thereof, the majority is reduced to speculating that the drugs may have been in open view during the moment they were being flung from the window of the unfurnished room and that, even though there is no evidence that defendant was ever in that room, she may have been in close proximity to the drugs at the moment they may have been in open view because five minutes later she was standing in the hallway. Under these circumstances, it is clear why the trial court did not submit these counts on the basis of the presumption, without any objection or request for such submission by the People.
The only theory under which defendant actually was convicted of these counts was constructive possession by reason of her alleged dominion and control over the contraband. However, the evidence set forth to sustain this theory was insufficient as a matter of law.
It is well established that, absent evidence establishing the drug factory presumption, mere presence in an apartment in which drugs are found is not enough to sustain a conviction demonstrating the defendant’s dominion and control over the *341apartment and its contents (People v Headley, 74 NY2d 858; People v Rivera, 176 AD2d 498, lv denied 79 NY2d 831; People v Dawkins, 136 AD2d 726; People v Ortiz, 126 AD2d 677, 678, lv denied 70 NY2d 652).
In the case at hand, there was no link between defendant and the apartment other than the fact that her photograph, which appeared to have been taken in the same apartment, was found there. Even if the evidence indicated that the photograph belonged to defendant, that would not serve to establish her dominion and control over the apartment and its contents (see, People v Ortiz, supra [presence of defendant’s passport in a kitchen drawer not enough to show dominion and control]); and, in this case, the evidence indicates that the photograph was more probably the property of the codefendant, possibly her boyfriend, since the descriptive phrase on the photograph, which described her in the third person, was obviously written by someone other than defendant.
In addition to the evidence of the photograph, the People attempt to rely on defendant’s knowledge that the premises were a drug factory, as implied by the fact that some of the drugs were in open view, to support the inference that she had dominion and control over the apartment and its contents. However, while the People convincingly argue that the premises were indeed a drug factory, they have provided no evidence demonstrating or even implying that defendant’s connection to the premises was that of a participant in the business, rather than merely as a visitor, as would be necessary to establish dominion and control. The People’s argument is, thus, no more than an attempt to expand the scope of the statutory drug factory presumption to all of the contraband, including weapons, found in the apartment regardless of where they were found. This is plainly in contravention of the statute.
Clearly this is a far different situation than that in People v Tirado (38 NY2d 955, 956), cited by the majority, in which the evidence not only showed that the apartment was used in the drug trade, but that the defendant, the only person charged, was not only present in the apartment along with other people but was also the tenant of record. In sharp contrast, the defendant in this case was not the tenant of record, she did not have the keys of the apartment, no clothing or personal belongings of hers were in the apartment, her handwriting was not on any of the records in the apartment, and there was no evidence that she had ever been seen entering or leaving the apartment prior to the date of her arrest. Thus, the issue is solely whether, viewed in a light most favorable to the People, *342the mere presence of her photograph, and the implication that she was in the apartment once before when it was taken, are enough to support the inference, beyond a reasonable doubt, that she exercised dominion and control over the apartment and its contents. They are not (see, People v Rivera, 176 AD2d 498, 500, lv denied 79 NY2d 831, supra [presence in an apartment to which defendant fled from police of a large number of glassine envelopes bearing same logo as those which defendant just sold not enough to show dominion and control where "(t)here was no evidence that defendant leased the apartment; no keys were found in his possession; no clothes or other property belonging to him were found inside the apartment; no rent receipts, bills or other evidence linked him to the apartment”]). In short, the evidence supported no inference other than that, rather than being a drug dealer herself, defendant was dating a drug dealer. While this may be an inadvisable personal choice, it is not, by itself, evidence of participation in a crime.
Under these circumstances, the evidence was clearly insufficient as a matter of law to demonstrate defendant’s possession of any weapons or drugs based on her supposed dominion and control over the apartment and its contents. Since this is the only basis upon which defendant’s conviction of all of the counts of the indictment other than the fifth rests, I would reverse.
"The presence of a narcotic drug, narcotic preparation, marihuana or phencyclidine in open view in a room, other than a public place, under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare for sale such controlled substance is presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance at the time such controlled substance was found”.