OPINION OF THE COURT
Lupiano, J.
The People’s case discloses that on November 9, 1973, at about 3:00 a.m., Oliver Stephen, the landlord of a two-family house located at 3343 Paulding Avenue, Bronx, New York, pursuant to complaints made by the downstairs tenant regarding the occupants of the second-floor apartment, investigated those premises. Not receiving a response after knocking on the upstairs apartment door, Stephen entered the apartment by means of a passkey. Though rented, the apartment was virtually vacant. A search of the premises by Stephen disclosed a white powdered substance and glassine envelopes in a box. He notified the police and upon their arrival outside the Paulding Avenue address, informed them that there were drugs in the upstairs apartment. He escorted the police to the apartment and directed them to the box. The officers observed the contents which also included drug paraphernalia. The apartment was secured and these items were brought to the precinct, where a preliminary field test on some of the bags of powder indicated the possible presence of cocaine. This indication later proved to be unfounded. Afterwards the material was returned to the apartment. In the interim, a search warrant was obtained. Further search of the premises disclosed 291 glassine envelopes of heroin in a shopping bag above the bathroom ceiling and an additional quantity in a refrigerator in the kitchen. While officers were present, at about 5:30 p.m. defendant and one Jeffrey Jones entered the apartment. Defendant entered first, followed some 30 seconds later by Jones. After entering the apartment, defendant turned on the lights and was observed to verbally and facially manifest surprise when he noted the presence of cigarette ashes dropped in the kitchen sink by the investigating officers. The officers then revealed their presence and seized the two men. A set of keys to the apartment, rent receipts and a business card from the realty agent who rented the dwelling were subsequently taken from defendant. Defendant’s companion, Jones, a furlough absconder from the Eastern New York [603] Correctional Facility in New York, was carrying a cardboard box containing an electric drill and two large plastic envelopes of heroin.
The defendant did not testify, but his companion, Jones, appeared as a witness on defendant’s behalf. According to Jones, he and defendant, whose acquaintance he made while both were serving sentences at Sing Sing Penitentiary, were joined on November 9, 1973 by one "Rose”, who presented Jones with a box, rent receipts and a set of keys to the apartment at Paulding Avenue. The box contained a drill, according to "Rose”. The purpose of their visit to the apartment and the proposed use of the contents of the box were not testified to. When the two men arrived at the apartment, they let themselves in and were surrounded and frisked by the police. Jones disclosed that he had not been to the apartment prior to that occasion and admitted using a different name to avoid detection as a furlough absconder.
When the upstairs apartment became vacant in August, 1973, the landlord engaged Osborne Real Estate to rent it. Ms. Hall of that agency testified that the apartment was rented by the agency on a month-to-month basis, without a written lease, to an individual who called himself Roosevelt Anderson and gave as his address 263 West 114th Street. Rent and fee receipts were issued on October 11 and 13, 1973, and the only keys in the agent’s possession were given to Anderson. No check was made by the agency to determine if Anderson had actually moved into the apartment. Ms. Hall further testified that she had not seen the defendant before the trial.
The jury returned a verdict of guilty on both counts of the indictment—criminal possession of a controlled substance in the first degree and criminally using drug paraphernalia in the second degree.
On appeal, defendant argues that the initial search and seizure by the police of the box and its contents was illegal and the evidence thereafter obtained must be suppressed as "tainted”. In denying defendant’s pretrial motion to suppress evidence, Trial Term (Weaver, J.) noted: "unlawful entry by a private person unconnected with law enforcement agents is not a violation of the Fourth Amendment and will not result in the exclusion of the contraband at a criminal proceeding (People v. Horman, 22 N Y 2d 1378; Burdeau v. McDowell, 256 U.S. 465). Therefore, the question of whether Mr. Stephen was initially authorized to enter the apartment is irrelevant, since [604] any contraband seized by him would not result in the exclusion of such evidence in the criminal proceeding. However, once Stephen called the police officers to the scene, we must consider whether the officers could enter the apartment and seize the box containing heroin without a search warrant. The purpose of the exclusionary rule is to deter unconstitutional conduct by law enforcement officers (United States v. Durkin, 335 F. Supp. 922; Coolidge v. New Hampshire, 403 U.S. 443). Stephen, when he first saw the white powder, had no contact with a law enforcement official. He was acting on his own behalf. If Stephen would have removed the powder and taken it to the police station, there would have been no Fourth Amendment violation. However, Stephen did not do that; he called the police officers and informed them of the powder in the apartment. The fact that the police officer entered the apartment at Stephen’s instance is of no significance, since Stephen intended to reveal what he had found to the police and to cause such an inspection to be made (United States v. Durkin, supra, at p. 926). Once the inspection was made and the powder analyzed and returned to the apartment, the police had sufficient probable cause to apply for a search warrant. It was after the search warrant was signed that a thorough search of the apartment was conducted and the contraband seized.”
Regarding the conduct of the landlord, Mr. Stephen, we observe that after his initial entry into the apartment he noted that it was virtually vacant. This fact, coupled with the complaints received respecting these accommodations, led him in his capacity as landlord to examine the premises. Upon discovering the narcotics, he determined to notify the police. This action was complimentary to Mr. Stephen, both in his capacity as a citizen mindful of his duty and responsibilities and as a landlord mindful of his own self-interest. Section 231 of the Real Property Law pertinently provides: "1. Whenever the lessee or occupant other than the owner of any building or premises, shall use or occupy the same, or any part thereof, for any illegal trade, manufacture or other business, the lease or agreement for the letting or occupancy of such building or premises shall thereupon become void, and the landlord of such lessee or occupant may enter upon the premises so let or occupied. 2. The owner of real property, knowingly leasing or giving possession of the same to be used or occupied, wholly or partly, for any unlawful trade, manufacture or business, or [605] knowingly permitting the same to be so used, is liable severally, and also jointly with one or more of the tenants or occupants thereof, for any damage resulting from such unlawful use, occupancy, trade, manufacture or business” (emphasis supplied). Of course it is well recognized that the term "void” in subdivision 1 of section 231 of the Real Property Law means voidable at the option of the landlord (220 West 42 Assoc, v Cohen, 60 Misc 2d 983) and it is requisite for a landlord opting to void such lease to evict the tenant by initiating a holdover summary proceeding. We merely allude to the statutory enactment as reflective of the reason and common sense displayed by Mr. Stephen.
Even assuming that the removal of the box and its contents to the precinct house for field tests by the police was improper, the fact that the landlord intended to disclose the presence of suspected narcotics to the police and to cause such an inspection to be made, coupled with the observation by the police of the contents of the box, amply justify the issuance of the search warrant. In issuing the warrant herein based upon the affidavit of Police Officer Donnelly, the court was apprised of the informant’s identity, how his information was obtained, and had independent corroborative verification of his account. The underlying circumstances thus conveyed to the court in support of the belief of the affiant as to the reliability of the information justify the issuance of the warrant. Mr. Stephen was not a professional informer, but a private citizen. "The average citizen who provides the authorities with information as to observed criminal activity does so with no expectation of private gain. Rather, he aids the police in enforcing the laws in order to promote the safety and order of the society as a whole” and is not as inherently suspicious as are the undeworld denizens upon whom the police must often rely (People v Hicks, 38 NY2d 90, 94). In informing, the landlord subjected himself to civil damages for malicious prosecution if he furnished false information causing a person’s premises to be unlawfully searched. The mere fact that an affidavit of the landlord was not presented in addition to that of Officer Donnelly on the application for a search warrant does not, under the circumstances disclosed by the Donnelly affidavit, render the search warrant suspect as not based on probable cause. Possession of drug paraphernalia in itself is illegal, and the issuing Magistrate was informed that such was also found in the apartment. In People v Reisman (29 NY2d 278, 284), [606] the Court of Appeals held that "[ijndependent untainted evidence establishing probable cause for police conduct will sustain the arrest or seizure even if there has been antecedent illegal conduct by the police.”
The critical issue on this appeal is whether the circumstantial evidence viewed in its entirety justifies the conviction of defendant on the crimes charged beyond a reasonable doubt. Defendant argues that as he was not the "Roosevelt Anderson” to whom the apartment was rented, he cannot be convicted of possession of the drugs and use of the drug paraphernalia seized at the apartment. The evidence in this case is largely circumstantial and will be briefly summarized: Defendant entered the secured premises and evinced familiarity with the surroundings by immediately turning on the lights and expressing verbal and facial surprise upon seeing the cigarette ashes deposited by the officers in the sink in the kitchen. He possessed the keys to the apartment, the rent receipts and a business card from the realty agent who rented the dwelling. The business card had inscribed on it the name and address of the landlord and a mailing address for the rent. The real estate agent’s files list "Roosevelt Anderson’s” address as the same given by defendant when his pedigree was taken by the police. The dwelling was virtually devoid of furniture. A business record of Osborn Realty bears a phone number and the legend—"Ask for J.J.” Defendant’s companion, Jeffrey Jones, admitted that he was referred to by the nickname "J.J.”
"While the evidence is circumstantial in nature, the test of its sufficiency is the same 'as in any criminal case, i.e., whether the evidence "points logically to defendant’s guilt and excludes to a moral certainty, every other reasonable hypothesis” ’ * * * In considering the sufficiency of the evidence, one should view the circumstances in their entirety. Nor is it 'necessary for each piece of circumstantial evidence to point to no hypothesis but guilt, but the totality must’. (People v. Cathey, 38 A D 2d 976.) There is but one logical conclusion which can be drawn from the totality of the evidence here presented—that defendant is guilty of the crimes for which he now stands convicted” (People v White, 41 AD2d 629, affd 33 NY2d 996; emphasis supplied).
As aptly noted by Judge (now Chief Judge) Breitel in People v Reisman (supra, pp 285-287) "The crime of possessing dangerous drugs requires a physical or constructive possession [607] with actual knowledge of the nature of the possessed substance [citation]. Knowledge, of course, may be shown circumstantially by conduct or directly by admission, or indirectly by contradictory statements from which guilt may be inferred [citation]. Generally, possession suffices to permit the inference that the possessor knows what he possesses, especially, but not exclusively, if it is in his hands, on his person, in his vehicle, or on his premises [citation]. This, of course, is an elemental inference based on common experience and all but universal probabilities. Thus it is an ancient rule of inference or rebuttable presumption of fact that the recent and exclusive possession of the fruits of any crime warrants the inference of guilt, including, when material, knowledgeable possession [citation]. In the case of contraband its possession is a crime per se, and hence the inference of guilt, that is, knowledgeable possession, is as strong as is the case, for instance, with stolen goods [citation] * * * [I]t makes no significant difference for this purpose whether knowledge is presumed by statute or inferred by reasoning without the benefit of statutory presumption. In either event, the probabilities must justify the one or the other, although the probabilities to support a statutory presumption, it has been said, need not be as great as to support an inference in a criminal case [citation]. Moreover, the foregoing reasoning is particularly applicable to dangerous drugs as the Illinois court said so aptly * * * with reference to possession in premises rather than on the person: '[WJhere narcotics are found on premises under defendant’s control, it may be inferred that the defendant had both knowledge and control of the narcotics. The inference is based largely upon the nature of the commodity and the manner in which its illegal traffic is conducted * * * [T]hey are sold for exorbitant sums on the black market and are therefore of great value to the person possessing them. Furthermore, since their mere possession may subject such person to severe criminal consequences, the narcotics traffic is conducted with the utmost secrecy and care. Human experience teaches that narcotics are rarely, if ever, found unaccountably in a person’s living quarters. (People v. Nettles, 23 111. 2d 306, 308 * * *)”
People v Nettles (supra) cited by the Court of Appeals involved a situation in which narcotics were found in an apartment and a person occupying the premises was prosecuted for their unlawful possession. The key is control of the [608] premises and at the outset it is noted that control is not necessarily limited to the tenant of rented premises because control can be delegated or shared. "[W]here narcotics are found on the premises under the control of defendant, this fact, in and of itself, gives rise to an inference of knowledge and possession by him which may be sufficient to sustain a conviction for unlawful possession of narcotics, absent other facts and circumstances which might leave in the mind of the jury * * * a reasonable doubt as to his guilt * * *. The requirement that defendant’s guilt be proved beyond a reasonable doubt does not mean that the Court may disregard the inferences that Sow from the evidence before it” (People v Nettles, 23 111 2d 306, 308-309; emphasis supplied).
In People v Mack (12 Ill 2d 151) police found narcotics in an apartment which showed no signs that it was used as a habitation. Defendant who paid the rent for the apartment lived with his brother at another location. Defendant and others were seen at the apartment and there was a possibility that the janitor of the building also had a key to the premises. Despite the fact that others had access to the apartment, defendant was found to have the requisite possession and control to sustain the conviction for drug possession. The court declared (p 162): " 'possession may be constructive, as well as actual’ * * * [T]he keeping of narcotics in a place under the immediate and exclusive control of the accused is possession under a criminal statute.” Further, "the rule that possession must be exclusive does not mean that the possession may not be joint * * * [Cjourts of other jurisdictions have held that possession of narcotics may be joint. (People v Hood, 150 Cal. App. 2d 197, 309 P. 2d 856; Gonzales v. People, 128 Col. 522, 264 P. 2d 508 * * * [TJhese cases express a sound rule. To hold otherwise would permit two or more persons to gain immunity from prosecution on a charge of unlawful possession of narcotics by proving joint possession of the drugs. Such a result would be contrary to reason” (People v Embry, 20 111 2d 331, 335-336). Respecting circumstances justifying a reasonable inference as to joint dominion and control of contraband or that a person is aiding and abetting another with regard thereto, the court in People v Hood (150 Cal App 2d 197) noted: "On the question of joint possession, the observation of the court in People v Basco, 121 Cal. App. 2d 794, 796, 264 P. 2d 88, 89, is here apposite: 'A person may be so closely interested in and connected with the unlawful possession of [609] narcotics by another as to furnish support for a finding that there was a joint possession.’ ”
The common sense experience of life and human nature possessed by those who don the judicial robe and preside over the judicial process, whether at the trial or appellate level, when focused upon the circumstances of the instant crimes as narrated by the witnesses and supported by evidentiary matter, impels the conclusion that the judgment herein be affirmed.
"The People’s proof at trial was largely, if not totally, circumstantial. The issue of ultimate fact in such cases is whether the evidence logically points to the defendants’ guilt and excludes, to a moral certainty, every other reasonable hypothesis [citation]. This issue was properly and fully framed for the jury by the trial court in its charge. On appeal from such a verdict the reviewing court need not be convinced to an absolute certainty that there exists no hypothesis consistent with defendants’ innocence in order to sustain the conviction thereon (People v Regina, 19 NY2d 65, 73-74; People v Harris, 306 NY 345, 351). Rather, it is enough if the circumstantial evidence is 'direct, substantial and unequivocal’ (People v Regina, supra, p 72) and the inferences of guilt to be drawn from the circumstances, as opposed to mere suspicions, are 'logically compelling’ (People v. Cleague, supra, p 367)” (People v Gross, 51 AD2d 191, 193). Beyond cavil, the court will not lightly strike down a verdict.
To reiterate, the key is control of the premises and such control is not restricted to a lessee (see People v Tirado, 47 AD2d 193, affd 38 NY2d 955).
The circumstantial evidence, viewed in its entirety, with reason and common sense employed under the guidance of established legal principles governing appellate review, clearly warrants an affirmance herein. To recapitulate: "[I]t is not true that circumstantial evidence must be such that no possible theory other than guilt can stand, but that the theory of guilt must be beyond a reasonable doubt, i.e., the circumstances must not be consistent with innocence within a reasonable doubt [citation], and the jury must decide. It cannot be possible that circumstantial evidence must amount to a mathematical demonstration while direct evidence need only go beyond a reasonable doubt * * * 'Exclusion of every "possible theory other than guilt” is not required * * * Exclusion of "every other rational hypothesis,” which means reasonable [610] hypothesis, is the test, and this jury was so instructed. Accepting the foregoing facts no reasonable theory, other than defendant’s guilt, occurs to us as accounting for them. Doubtless such was the conclusion of the jurors. We think the evidence is sufficient’ ” (Gonzales v People, 128 Col 522, 527).
Relevant to the demarcation that separates the functions of a jury from those of an appellate court is the following observation in People v Cohen (223 NY 406, 422-423): "Viewing the evidence as a whole; making all allowance; using all proper caution, we believe that it presented a question which could only be solved by a jury. The responsibility for the result rests with it. By this statement we do not intend to criticize its action. The jurors saw the witnesses. The claims of the People and the defendant were presented to them with force and ability. Evidently they considered the case with care. Better than a court which reviews but the printed record are they fitted to pass upon the guilt or innocence of the accused.” Further, "if there «is a fair conflict in the evidence or it is such that different inferences can be properly drawn from it, the determination of the jury will not be interfered with, unless it is clearly against the weight of evidence, or appears to have been influenced by passion, prejudice, mistake or corruption, [citation.] If, in the judgment of this court, there was a rational doubt of the guilt of the defendant, it would not be a sufficient ground for reversal. Under our system of criminal jurisprudence, it becomes the exclusive province of the jury to determine whether the evidence pointing to the guilt of the accused is so lacking in convincing force as to leave an intelligent and discriminating mind in doubt as to the truth of the charge contained in the indictment. When the jury, by their verdict, have declared that no such condition of mental uncertainty has arisen from a contemplation of the evidence, the prisoner has had the full benefit of the rule of law which protects him from punishment, unless his crime is established beyond a reasonable doubt, and the question is not open for review in this court, unless the case is so weak that the verdict should be set aside because against the weight of evidence, or for other sufficient cause. The charge of the trial judge upon this point was full and explicit and eminently fair to the defendant * * * and this proposition was reiterated and emphasized, so that it must have been prominently and pervasively in the minds of the jury when they retired for their final deliberation” (People v Taylor, 138 NY 398, 405-406).
[611] The circumstantial evidence herein above summarized serves to conclusively link defendant with the exercise of dominion and control over the apartment and as such justifies the jury’s finding that defendant had constructive possession of the drugs discovered therein. The strength of the links in the chain of circumstantial evidence mandates affirmance of his conviction.
Accordingly, the judgment of the Supreme Court, Bronx County (Cohen, J., at trial and sentence; Weaver, J., at suppression hearing), rendered January 16, 1976, after a jury trial, convicting defendant of criminal possession of a controlled substance in the first degree and criminally using drug paraphernalia in the second degree, should be affirmed.