Judgment, Supreme Court, Bronx County (Daniel J. Sullivan, J.), rendered October 29, 1982, which convicted defendant of attempted murder in the second degree and criminal possession of a controlled substance in the second degree, and sentenced him to two concurrent prison terms of 12 1/2 to 25 years, both consecutive with a Federal prison sentence currently being served, modified, on the law, to reverse defendant’s conviction of criminal possession of a controlled substance in the second degree and dismiss that count of the indictment, and otherwise affirmed.
Order, Supreme Court, Bronx County (Daniel J. Sullivan, J.), entered October 29, 1982 which denied defendant’s motion to dismiss the indictment pursuant to CPL 30.30, 580.20, unanimously affirmed.
Joseph Bunyarko, a gypsy cab driver, was dispatched by a radio call to 1020 Grand Concourse and arrived there shortly after midnight on November 15, 1979. At that time, two people walked from the building toward the passenger door of the cab. He recognized one as Wanda, a regular customer, to whom he said "hello”, and the other was the defendant, whom Bunyarko had never met before. The defendant asked, "Is your name Joe, are you car 84?”, whereupon Bunyarko leaned over, rolled down the window on the passenger side of the car
Upon reaching that apartment, Officer Kahmain knocked on the door and announced "police” while Bunyarko stood aside. The peephole opened and a moment thereafter was shut. Kahmain continued to knock and call out "police” for approximately 10 minutes until the door was finally opened. Upon entering, four people were observed to be inside: a woman, a child, and two men, one of whom was the defendant, who was speaking on the phone to his lawyer, and the other was a man who was openly wearing an empty gun holster and who was in his 20’s and the same height as defendant. Bunyarko identified defendant as the person who shot at him. The police thereupon arrested defendant and allowed the others to leave without questioning any of them.
Upon returning downstairs, Officer Kahmain recovered a spent nine-millimeter shell casing on the sidewalk in front of the building. Observing the bullet hole in the door of the cab, the officers pulled apart the door paneling and found a spent bullet fragment. Both Bunyarko and the defendant were then brought to the 44th Precinct.
It is unclear what steps, if any, were taken to secure apartment 16V overnight, but at 7:30 a.m. the following morning Police Officer Larry Coyle and his partner were assigned to safeguard that apartment. About an hour later, at approximately 8:30 a.m., Coyle searched the grounds outside of 1020 Grand Concourse. On the roof of the garage, in line with the "V” apartment line, Officer Coyle found a burst paper bag within which were two plastic bags containing almost four ounces of heroin, three guns, one of which was a fully loaded nine-millimeter pistol, and ammunition. These items were admitted into evidence over vigorous objection by the defense.
Defendant’s conviction for criminal possession of a controlled substance in the second degree must be reversed and that count of the indictment dismissed. The wholly circumstantial evidence of constructive possession of the heroin
" 'Possess’ means to have physical possession or otherwise to exercise dominion or control over tangible property.” (Penal Law § 10.00 [8].) The record is barren of any direct evidence that defendant had actual physical possession of the heroin at any time. The circumstantial evidence adduced at trial was insufficient to provide the requisite degree of proof that defendant had constructive possession of the drugs which were found the day after his arrest on the outdoor garage roof. When the evidence is entirely circumstantial, it must appear that the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and that the evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence. (People v Sanchez, 61 NY2d 1022.) The inference of constructive possession must fail in this case because under the facts here present equally reasonable alternative inferences could be drawn as to the ownership or possession of the drugs prior to the time they were discovered on the garage roof some 16 stories below defendant’s apartment in an area which he neither owned, controlled, nor over which he exercised any dominion. (People v Russell, 34 NY2d 261.) Even if it may reasonably be inferred that the drugs were thrown from defendant’s apartment, either of the other two adults present therein could have owned or possessed the contraband, and the police presence at the crime scene of the shooting would have deterred anyone who owned the drugs from returning that night or the following morning to recover them.
In sum, the circumstantial evidence failed to prove beyond a reasonable doubt the essential element that defendant possessed the drugs and, accordingly, the conviction for this charge must be reversed and the indictment dismissed with respect thereto.
As to defendant’s conviction for attempted murder in the second degree, the evidence adduced supporting the jury’s verdict seems to us very persuasive indeed. The defendant was identified by Bunyarko within a few minutes after the shot was fired, under circumstances strongly confirming the accuracy of the identification. The nine-millimeter pistol, connected by ballistic testimony with the recovered shell, was found under circumstances which strongly point to its having been disposed of by someone in the apartment in which the defendant was found. The record discloses no reason for supposing that the complaining witness mistakenly identified
As to the defendant’s alleged telephone conversation with a lawyer while the police were awaiting entry into the apartment, it should be noted that this evidence had been inadvertently elicited by defense counsel during cross-examination, and that he did not ask the trial court to strike the testimony or give curative instructions to the jury. The reference to this testimony by the District Attorney in the summation was clearly improper, but we see no reason to suppose that if an appropriate application had been made to the trial court there would not have been an instruction given that would have fully addressed the problem that had been raised. Under all the circumstances, we are not persuaded that the trial assistant’s unobjected-to passing comment, although clearly an improper one, requires reversal, in the interest of justice, of a conviction so compellingly supported by the evidence. Concur —Murphy, P. J., Sandler, Carro and Rosenberger, JJ.