Criminal Possession of a Controlled Substance & Criminally Using Drug Paraphernalia: Constructive Possession

The NY criminal defense attorneys and founding partners of Crotty & Saland, LLP, have handled countless cases involving narcotics and drugs as both Manhattan prosecutors and as criminal defense attorneys. In the area of Criminal Possession of a Controlled Substance and Criminally Using Drug Paraphernalia, Crotty & Saland, LLP knows that prosecutors can charge you for either possessing the drugs and paraphernalia or they can charge you for constructively possessing that contraband. In other words, while the drugs may not have been in your pocket, in some capacity law enforcement has alleged that you exhibited dominion or control over the contraband.

Recently, on October 30, 2008, New York (Manhattan) County Criminal Court Judge Elisa S. Koenderman in People v. Anthony Lebron, 2008NY032832, dismissed a complaint charging the above offenses because the complaint was facially insufficient. In that matter, the police arrested Mr. Lebron after they recovered eighteen ziplock bags containing crack/cocaine residue from a bedroom in “the defendant’s apartment.” Additionally, according to the Court’s decision and review of the complaint against Mr. Lebron, “three large ziplock bags containing numerous small pink ziplock bags, four large ziplock bags containing numerous small clear ziplock bags, a scale, a glass pyrex measuring cup, and a white cup, all allegedly intended for use in the packaging and dispensing of narcotic drugs, were also recovered from ‘the defendant’s apartment.'”

Upon reviewing the complaint, the defendant’s attorney challenged the sufficiency of the complaint because the prosecution failed to use non-hearsay allegations that the apartment was the defendant’s. In other words, merely stating that the apartment was the defendant’s apartment was a conclusion unsupported by non-hearsay evidence.

In agreeing with defendant’s counsel and dismissing the complaint for facial insufficiency, the Court stated that:

The “officer’s statement that the apartment was ‘the defendant’s’ is completely conclusory (see People v. Dumas, 68 NY2d 729, 730 [1986]; People v. Rosado, 192 Misc2d 184, 186 [Crim Ct, NY County 2002]. Without evidentiary facts to demonstrate that the defendant exercised dominion and control over the premises, the sole allegation that the items were recovered from “the defendant’s apartment” is insufficient to provide reasonable cause to believe that the defendant knowingly possessed the alleged crack/cocaine and drug paraphernalia recovered from the apartment in this case.”

The Court further recognized that:

“In order to support a charge that the defendant was in constructive possession of tangible property, the People must show that the defendant exercised dominion and control over the property by demonstrating that he had a sufficient level of control over the area in which the contraband was found or over the person from whom it was seized (see People v. Manini, 79 NY2d 561, 573 [1992]). Constructive possession is established where the defendant has been found in proximity to contraband recovered from premises under the defendant’s control (see People v. Tirado, 47 AD2d 193 [1st Dept 1975]).”

While the Court listed some examples that would help establish constructive possession, it is important that your criminal defense attorney review and analyze the charges against you as alleged in the complaint. In such a case, if the prosecution fails to set for some evidence such as whether you provided the apartment as a home address to city agencies, you possessed a key, or you made an admission indicating it was your apartment, your criminal defense attorney should seek to have the case dismissed. Although the elements listed above are not an exhaustive list, a trained legal eye is necessary to make sure that charges are legally sufficient and the prosecution is held to their burden. In doing so, Crotty & Saland, LLP, will aggressively set forth the strongest legal argument to protect your rights, freedom, and liberty.

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