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Appellate Court Affirms Conviction for Constructively Possessing a Firearm- People v Sloley 2020 NY Slip Op 00328


In the case of People v. Sloley, the Appellate Court considered the question as to whether the jury properly concluded that a defendant constructively possessed a firearm.  Constructive possession is a legal doctrine which allows prosecutors to bring criminal charges and potentially obtain convictions for possessory offenses in cases where the contraband was not actually found physically on the defendant.

In 2016, the defendant was pulled over by law enforcement for speeding. When he officer returned to his car to write the speeding ticket, the defendant then fled.  At one point during the chase, the defendant drove behind a building and the police lost sight of him.  He then reappeared and crashed. The police searched the area behind the building where the defendant had driven during the chase and found a handgun with the help of a canine. As a result, the defendant was charged with a variety of crimes and eventually convicted of criminal possession of a weapon in the second degree, unlawful fleeing from a police officer in a motor vehicle in the third degree, and reckless driving.  Because he was a second violent felony offender, the defendant was sentenced to 14 years in prison followed by five years of postrelease supervision. The defendant appealed the conviction.

The basis of the defendant’s appeal of the firearms charge was that the prosecution did not establish that he had possession of the gun. For a possession charge the law requires that the defendant must have exercised “dominion or control over the property by a sufficient level of control over the area in which the contraband is found.” People v McCoy, 169 AD3d 1260, 1262 [2019].  In this case no one witnessed the defendant with possession of the gun and no one witnessed the defendant discard the gun.  A deputy sheriff testified that the defendant fled in his vehicle behind the building where the gun was found.  He further testified that the handgun was relatively clean and not weathered, indicating that it had been placed in the area recently.  Furthermore, the defendant’s DNA was found on the gun as well as a hat that was found in the area where the gun was found.

The defendant argued that because no one saw him with the gun it is not unreasonable to come to a conclusion other than that the defendant dropped the gun in the area behind the building. He also questioned the manner in which law enforcement handled the hat and the gun.  He argued that cross-contamination caused his DNA to be found on the handgun.

The court rejected the defendant’s arguments.  While it was possible that there was another explanation for how the gun ended up behind the building, credibility was on the prosecution’s side.  In addition, there was no evidence of mishandling of the evidence leading to cross-contamination.


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