New York PL 220.03: How the Police & Prosecutors can Establish Constructive Possession When Drugs or other Contraband is Not on Your Person

Whether you are arrested for allegedly possessing a drug such as heroin or cocaine, a weapon including a gravity knife or firearm, or some marijuana, the contraband the police claim you possessed may not have been on your person. That is, you are being charged with PL 220.03 (drug possession), PL 265.01 (weapon possession) or PL 221.10 (marijuana possession), but the police did not see or recover the contraband from your hand, pocket, body, etc. The law is clear in these circumstances. Assuming the allegations in the complaint against you are sufficient (the elements must be proven beyond a reasonable doubt if and when there is a trial), prosecutors can push forward in a case regardless if your possession was considered actual or constructive.

Although you will have a much further in depth consultation with your own New York criminal lawyer who will explain the different types of possession to you, the difference between actual possession and constructive possession is fairly obvious. One is on your person and the other in an area where you have dominion and control. In other situations, even though your possession was not physical, if the contraband is in plain view or in a car, a legal presumption of your knowledge and possession may be attributed to your case.

One of the easier ways to grapple with the different types of possession is to examine it in the context of Criminal Possession of a Controlled Substance in the Seventh Degree (New York Penal Law 220.03). Arrests are routine in Manhattan, Brooklyn, Queens, etc., where a person drops drugs on the ground when the police approach, are in a vehicle with others and cocaine is in the console of the car or some other similar scenario. In People v. Ransom, NYLJ 202643818441 (Crim. Ct. Kings Ct’y February 6, 2014), the accusatory instrument (complaint or information) alleged that the police officers, after observing the defendants in an apartment, found crack-cocaine residue in that apartment.  Based off this information, each defendant was charged with Seventh Degree Attempted Criminal Possession of a Controlled Substance (Penal Law 110/220.03).

Prefacing their analysis, the court first looked at several statutes.  Penal Law 220.03 states that a defendant is guilty of Possession Seven when he “knowingly and unlawfully possess a controlled substance.”  Furthermore, “a person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime” (Penal Law 110.00).  In defining “knowingly,” the Court looked to Penal Law 15.05(2) which states that “a person acts knowingly with respect to conduct or to a circumstance [w]hen he is aware that his conduct is of such a nature or that such circumstance exists.”

Lastly, and maybe most importantly, the Court looked to Penal Law §10.00(8) for the definition of possession: “[T]o have physical possession or otherwise exercise dominion and control over tangible property.” Constructive possession requires a showing “that the defendant exercised dominion and control over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized.” (People v. Manini, 79 NY2d 561, 569 (1992); People v. Pearson, 75 NY2d 1001 (1995)).

To begin their analysis, the Court stated that the accusatory instrument failed to allege either actual possession or constructive possession (i.e. facts that demonstrated that the defendant exercised dominion or control over the property).  In other words, the facts of this case do not allege that the defendants had actual or constructive possession over the crack cocaine.  Secondly, the Court pointed out that the charges also failed to establish the defendants’ knowledge of the controlled substance.  Although the facts show that the defendants were inside of the apartment where the residue was recovered, there were no other factual allegations that connected the defendants to the drugs.  Merely stating they were in an apartment where there was a narcotic residue, without more (whose apartment, how long were they in the apartment, what was their proximity to the residue, were any statements made acknowledging possession) is insufficient. Without such facts, it is near impossible to prove that the defendants knowingly possessed the controlled substance; nor can defendants’ knowledge be ascertained based solely on their presence inside the premises without some other nexus linking the defendant to the residue.

To conclude, the Court stated that although the officer’s recovered crack cocaine residue from inside defendant A’s apartment, the facts alleged were “too vague to sufficiently demonstrate reasonable cause to believe the defendants had exercised dominion or control over the controlled substance.”  The facts do not show where the defendants were “situated” with respect to the residue, whether it was in plain view, or whether defendants exercised dominion or control over the residue’s location.  Finally, a mere allegation that defendant A resides in the apartment and was present when the residue was found is insufficient to establish the requisite dominion or control over the property.  Therefore, the Court dismissed the charges.

To learn about felony and misdemeanor New York drug crimes, including  PL 220.03, follow the appropriate link. Additional information other other offenses where possession and constructive possession can become a central issue in your defense, such as PL 265.01, PL 265.02 and PL 265.03 (New York weapon crimes) and PL 221.10 (Criminal Possession of Marihuana), follow the appropriate link as well.

Crotty Saland PC is a New York criminal defense firm founded by former Manhattan Assistant District Attorneys. The New York criminal lawyers at Crotty Saland PC represent clients in State and Federal courts in and around New York City.

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