NY Drug Possession and Your Criminal Defense: Legal Possession of Drugs without Physical Possession

In New York State and New York City, you can be arrested, indicted and convicted for Criminal Possession of a Controlled Substance (drugs such as cocaine and heroin), Criminal Possession of a Weapon (firearms, guns, pistols and certain knives) as well as other charges even if you physically do not possess the contraband. At its simplest level, you need not possess in your hands or anywhere on your person the gun, drugs, etc. Under New York law, your possession may be “constructive.”

In People v. Lawrence Johnson, 2008NY091609, decided May 26, 2009, a New York County (Manhattan) Criminal Court issued a decision directly dealing with the legal concept of “constructive possession.” In that matter, the defendant was charged with Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law 、220.03), Criminally Using Drug Paraphernalia in the Second Degree (PL 、220.50[2]) and Unlawful Possession of Marihuana (PL、221.05).

Briefly, after the police executed a search warrant in an apartment, the officers recovered plates with razors, each of which had cocaine residue. Additionally, the officers recovered numerous clear empty plastic bags which they alleged were “consistent with that of packaging narcotics for sale” from the bedroom where the defendant and the co-defendant were when they were arrested. Finally, the officers recovered a scale and two large bags of marijuana as well as eighteen smaller bags of marijuana from the living room. The defendant challenged the accusations against him by arguing that he was not in possession of the narcotics and contraband recovered.

The court determined the following:
Mere presence in a location where contraband is discovered does not satisfy the elements of “constructive possession.” As addressed by the court, the rule in New York requires that the People must establish that the defendant exercised “dominion or control” over the contraband or property. In doing so, the People must show that the defendant had a level of control over the area where the property was recovered or found or over the particular person whom the contraband was seized. See People v. Manini, 79 NY2d 561, 573 [1992]; see also People v. Pearson, 75 NY2d 1001, 1002 [1990]; see also People v. DeJesus, 44 AD3d 464, 467 [1st Dept 2007]

The court further acknowledged that other factors establishing or supporting dominion and control, included the “proximity of a defendant to the contraband (People v. Tirado, 47 AD2d 193, 196 [1st Dept 1975]); “defendant’s authority over a person who possesses contraband as expressed via instructions” (People v. Diaz, 112 AD2d 311 [2d Dept 1985]) “or through commands” (People v. Rivera, 77 AD2d 538 [1st Dept 1980]); “or defendant’s control over a premises” (Tirado, 47 AD2d at 195; People v. Murdough, 20 Misc 3d 1137[A], 2008 NY Slip Op 51769[U] [Crim Ct, NY County 2008]). One other “significant” factor would also be whether the defendant possessed the keys to the apartment where the contraband was found even if it was not found on the defendant’s person.

In finding that the defendant “constructively possessed” the contraband in the bedroom, but not that in the family room, the court noted:

“In the instant case, the premises at issue are not a public place but rather a private apartment. There is no question that defendant had access to the premises since he was present inside the apartment where the drugs and alleged drug paraphernalia were seized. Access to premises, however, is a distinct concept from access to contraband which is found on those premises. Here, the defendant not only had access to the premises where the cocaine was found but, under the circumstances alleged, the defendant also had direct access to the cocaine itself.” In the family room, however, “[t]he criminal complaint neglects to state precisely where in the living room the marihuana was found or whether it was in plain view. Moreover, the defendant was never observed in the living room where the marihuana was recovered (see People v. Dawkins, 136 AD2d 726 [2d Dept 1988]). Furthermore, the complaint does not assert that the defendant owned, leased or lived in the apartment. Accordingly, there are no evidentiary facts from which to infer that the defendant had a possessory interest in either the marihuana or the area in which it was found.”

Because the possessory element of certain crimes, including Criminal Possession of a Weapon and Criminal Possession of a Controlled Substance, is critical to the sufficiency of the charges against an accused, challenging the basis and validity of one’s possession of any contraband is crucial. Whether you are alleged to physically possess an illegal substance or item or “constructively” possess it, contact the criminal defense attorneys at Saland Law PC for an analysis of the facts and to put your best defense into motion.

Founded by former Manhattan prosecutors, Saland Law PC is a criminal defense firm representing clients throughout the New York City region. For further information on drug crime issues relating to the quantity of the drug or issues involving narcotics and a laboratory analysis, please follow the respective links.

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