Viewing the evidence in the light most favorable to the People, the prosecution failed to establish defendant's guilt of the weapons charge. The charge stemmed from the discovery of a shotgun during a search of defendant's automobile repair shop incidental to his arrest. The salient facts are that a police undercover "buy and bust" operation culminated in defendant's arrest. On December 15, 1984, defendant was standing outside the Olivo Body Shop when several police officers arrived and arrested him on unlawful drug sale and possession charges. During a subsequent search of the premises, the arresting officers discovered a shotgun, in plain view in the back of a car which was apparently being restored in the work area at the rear of the shop. No ownership papers for the automobile were found. The two other individuals who were also present in the shop, defendant's employee Herman Vasquez and one Luis Jackson, were arrested. The defendant admitted neither ownership nor knowledge of the gun. At trial, the People relied upon the aforementioned facts and defendant's alleged motive to protect the area where he conducted the alleged drug transactions. The defense theory was that Jackson, whom the police had ultimately released from custody, owned the gun. One of the arresting officers, Officer MacSweeney, testified on cross-examination that Jackson was headed towards the gun when the police entered the shop and found the gun. MacSweeney also testified that he had noted on the Property Clerk's invoice for the gun that Jackson "ran to the rear of the location near the shotgun, was stopped by arresting officer" when the weapon was found and confiscated.
We conclude that the proof here falls short of that necessary to establish constructive possession. The facts indicate only access, not dominion and control. (Penal Law § 10.00.) An inference of possession cannot be placed upon so slender a reed as the access a defendant shared with other adults who also could have owned the property. (People v Vastola, 70 A.D.2d 918 [2nd Dept 1979].) "Where, as here, `the prosecution relies wholly upon circumstantial evidence to establish the guilt of the accused, the circumstances must be satisfactorily established and must be of such a character as, if true, to exclude to a moral certainty every other hypothesis except that of the accused's guilt' (Richardson, Evidence [10th ed.], § 148, p 119)." (People v Vasquez, 47 A.D.2d 934, 935 [2d Dept 1975]; see also, People v Sanchez, 61 N.Y.2d 1022.) The defendant's motion for a trial order of dismissal on the ground that the People failed to prove a prima facie case sufficiently preserved this issue for appellate review. (CPL 470.05.)
Concur — Murphy, P.J., Kupferman, Ross, Rosenberger and Wallach, JJ.