
    The People of the State of New York, Respondent, v. Manny Sands, Appellant.
    Supreme Court, Appellate Term, First Department,
    May 13, 1965.
    
      N. Henry Lindenhauer for appellant. Frank S. Hogan, District Attorney (Frederick P. Hafets of counsel), for respondent.
   Tilzer, J. P.

The arresting officer testified that on June 8, 1964, from 1:30 to 1:55 p.m., he was sitting in a truck parked in front of premises 310 St. Nicholas Avenue, a stationery-candy store, and that at separate intervals he observed four men enter the store, approach the defendant, hand him money and slips of paper and then leave apparently without having made any purchase. After each transaction the defendant Sands would walk to an ice cream freezer in the rear of the store and place the slip in the freezer. Thereupon the officer, bearing a search warrant, entered the premises and removed an envelope containing 52 slips from the freezer. The 52 slips contained notations of 185 plays of mutuel race horse policy.

Appellant contends that since he was charged with “ possession ” under sections 974 and 975 of the Penal Law, it was essential that his “ possession ” be conclusively shown.

The appellant would attach to the word “ conclusively ” and impose a standard of proof upon the People more stringent than “beyond a reasonable doubt.” But the mere fact that the crime is “possession,” does not mandate a higher degree of proof. As in any other crime, defendant’s “ possession ” must be established beyond a reasonable doubt.

Where the possession charged is a constructive one, the standard of proof does not vary. True the means of establishing the fact are different. But where circumstantial evidence is to be utilized, the burden is not increased so that the proof must establish to an absolute cerbamby the defendant’s possession.” The facts from which the defendant’s possession is inferred must be convincing, they must point directly to the guilt of the accused.

In the case of the defendant-appellant Sands the reasonable and logical inference to be drawn from the evidence is that the envelope which the officer removed from the freezer was the repository for the slips which the officer had seen the defendant place in the freezer.

In making a deduction that the circumstances point to the accused and exclude every hypothesis but that of his guilt, we are engaging in an affair of reason. We are not compelled to consider remote possibilities and reach an absurd result. To conclude on the facts before us that the envelope containing 52 slips and some 185 policy plays was put in the freezer by one of the customers would fly in the face of common sense and would be morally wrong. There was no testimony that any of these individuals had placed slips in the freezer. The reasonable inference to draw from the circumstances is that possession of the envelope was in the defendant. His possession was proven beyond a reasonable doubt.

The credibility of a witness is necessarily for the trial court who looked into his face and heard him testify rather than for the three Judges who simply read the printed record of what he said. (People v. Sanducci, 195 N. Y. 361.)

The judgment of conviction should be affirmed.

Copozzoli, J.

(dissenting). On the basis of the record now

before us I am of the opinion that defendant’s possession was not conclusively shown and, therefore, his guilt was not established beyond a reasonable doubt.

The record indicates the following: The slips which form the basis of this prosecution were found in a white envelope which was seized from a self-serving ice cream freezer, located in the rear portion of a stationery or candy store, and which was used by the public. The officer saw five or six people go to the freezer and take objects out. He could not see their hands when inside the freezer and he did not know whether or not they had anything in their hands when they were placed in the freezer. In addition, when the officer entered the store both defendant and his codefendant, Godfrey, were behind the counter and Godfrey was also seen going to the freezer and placing his hand therein. The officer never saw defendant handle the white envelope, put any slip of paper in the envelope, and could not identify any slip of paper that was found therein. He did not know whether there were any slips of paper in the freezer outside of the envelope as he did not make any further search.

While the officer testified that he could see whether the people put anything into the ice cream freezer and that they did not, such testimony, while in itself incredible, is completely negated by his testimony that he could not see the hands of these people when inside the freezer and that he did not know whether or not they had anything in their hands at such times.

It is undisputed that actual, physical possession of the incriminating papers was not shown. Since five or six other persons, whose possession was not excluded, used the freezer in which these papers were found (which freezer was also used by the codefendant, Godfrey), constructive possession by the defendant was not established beyond a reasonable doubt. (People v. Mitchell, 237 N. Y. S. 2d 775 [App. Term, 1st Dept.] ; People v. Ledwon, 153 N. Y. 10.)

For the reasons hereinabove expressed I dissent from the conclusion reached by my colleagues and vote for a reversal of the conviction and a dismissal of the information.

Gold, J., concurs in opinion by Tilzer, J. P.; Copozzoli, J., dissents in memorandum.

Judgment of conviction affirmed.  