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Defendant Files Appeal in NY Appellate Court Contending No Constructive Possession


This is an appeal from a judgment entered on 11-20-14 against the defendant. The defendant was found guilty of criminal possession of a controlled substance in the 3d degree and possession of drug paraphernalia in the 2nd degree. Pursuant to PL section 220.50 [1]- [3], the defendant argues that there was no direct evidence of constructive possession and therefore he should never have been convicted. The trial court erred in failing to provide a circumstantial evidence instruction to the jury. This court agrees. The judgment against the defendant is reversed and a new trial is granted.

Police officers executed a search warrant at the residence of the defendant’s girlfriend. The girlfriend leased this apartment in her name. When the police searched the premises, they found baggies of cocaine throughout the apartment, as well as paraphernalia in the form of scales, sandwich baggies and dillutant. The defendant’s name was on mail left at the apartment, but otherwise, it didn’t appear that he lived there.

Both the girlfriend and the defendant were indicted for possession. The girlfriend plead guilty and stated that all of the items were hers. Despite this, the trial court proceeded against the defendant under the theory of constructive possession.

Because the court refused to provide circumstantial evidence instruction, a reversal is required. The legal concept of constructive possession can be proven either directly or circumstantially (People v Santiago 22 NY3d 990). This circumstantial evidence charge is only appropriate where the evidence in question is largely circumstantial (People v Slade 133 AD3d 1203, People v Guidice 83 NY3d 245). In the present case, there was no direct evidence of the defendant’s dominion and control over the drugs that were found in the girlfriend’s apartment (People v Wilson 284 AD2d 958). In order to determine whether the defendant had control over the drugs and paraphernalia, an additional inference was necessary. Because of this, the circumstantial evidence charge was necessary (Spencer 1 AD3d at 710).

The appellate court contends that the error isn’t harmless in this case. The girlfriend’s testimony cleared the defendant. There was no clear evidence linking the defendant to the drug possession charge other than a few items in the apartment that had his name on them. This alone isn’t enough to establish constructive possession. It could be argued that there is strong of evidence here of the defendant’s guilt (People v Crimmins 36 NY23d, 241-242).

Whether someone is arrested for possessing a drug or a weapon, police can charge the defendant with possession even when the item is not physically on their person.

Generally, constructive possession is a legal concept to describe where someone has control over something without having physical possession of it. Under the law, a person who has constructive possession is in the same possession as a person who has actual possession. This concept is important in criminal law cases. Usually for a court to find constructive possession, the person must have knowledge of the object and the ability to control it.

A common scenario for constructive possession is where drugs are found in a house where multiple people live. Let’s say someone rents a room in a home and stays there several days a month. They may keep some clothes and a few possessions there. If drugs are found in the room, they can be charged with constructive possession even if they do not occupy the room the entire time.

The defense in this scenario may be that the room is shared by multiple people and that those other people exercise dominion and control over the premises. It also must be proven that knew about the presence of drugs. This can be simple when the drugs are in plain view but can be an entirely different matter when the drugs are hidden.

NY Slip Op. 07041


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