Possession in an Apartment Where Drugs are Found: Can Presence Alone Support an Arrest and Prosecution for NY PL 220.03 or NY PL 2201.16

If there are drugs found in your Manhattan apartment and you are inside that apartment, you are guilty of possessing those drugs, correct? If the police execute a search warrant and you reside in the in the Brooklyn home where drugs, such as cocaine, heroin or marijuana are found, you are guilty of possessing those controlled substances, right? After all, the police found the contraband in your apartment so you must be responsible. If the amount is fairly small of a controlled substance then there is no reason why the police should not arrest you for Criminal Possession of a Controlled Substance in the Seventh Degree, New York Penal Law 220.03. If the police believe you had the intent to sell the cocaine, heroin or other drug then they should arrest you for intending to sell those drugs pursuant to Criminal Possession of a Controlled Substance in the Second Degree, New York Penal Law 220.16. To give you some perspective on these crimes, PL 220.03 is an “A” misdemeanor punishable by a year in jail and PL 220.16 is a “B” felony punishable by one to nine years in a New York State prison. For good measure, let’s add some more perspective to the questions asked above. Your mere presence, without actual possession, may not be enough for the prosecution to sustain any criminal charge against you. Obviously you should consult with your own New York criminal lawyer or criminal defense attorney versed in drug crimes, but the following analysis of a recent court decision is right on point.

In People v. Stazzone, 2015QN006919, NYLJ 1202733598970, at *1 (Crim., QU, Decided June 18, 2015), the NYPD executed a search warrant at the residence of the defendant. According to the accusatory instrument, the police recovered a driver’s license providing the residence as the defendants and the defendant was in a basement bedroom during the execution of the search warrant. Further, the police recovered two (2) zip locs containing a quantity of marijuana, seven (7) zip loc[s] containing cocaine residue, five (5) Methadone pills, two (2) Alprazolam pills (Xanax), and one Clonozapam from a second bedroom. Additionally, cocaine was recovered from the hallway in the basement and two (2) Alprazolam pills (Xanax), one oxycodone, one crack pipe containing cocaine residue, and one glassine of heroine was recovered from the kitchen area on the second floor. No drugs were recovered from the defendant or in the bedroom where he was located. In his motion to dismiss, the defendant argued that the complaint against him did not establish that he both knowingly and unlawfully possessed the drugs and marijuana in question as it was neither on his person nor in the room where he was located during the execution of the search warrant.

In dismissing the charges, the Court first looked to the statutory “room presumption” found in New York Penal Law 220.25(2). NY PL 220.25(2) sets for that “[t]he presence of a narcotic drug, narcotic preparation, marihuana or phencyclidine in open view in a room, other than a public place, under circumstances evincing an intent to unlawfully mix, compound, package, or otherwise prepare for sale such controlled substance is presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance at the times such controlled substance was found…” Analyzing this statute, the Court noted that nothing in the complaint demonstrated the requirements to establish the room presumption.  Moreover, the accusatory instrument did not establish that the defendant was in close proximity to the drugs or marijuana recovered. Instead, the information specifically claimed the defendant was in a different bedroom in the basement and the contraband was recovered in another bedroom, a hallway, living room and kitchen.

Without the room presumption to rely on and without actual physical possession, the Court then looked to whether or not the defendant constructively possessed the drugs and marijuana.

Quoting from the decision:

“‘The People must show that the defendant exercised ‘dominion or 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, 573 [1992]). Mere ‘presence in a public place does not itself prove dominion and control over contraband discovered there’ (People v. Pearson, 75 NY2d 1001, 1002 [1990]). Factors which may demonstrate dominion and control include whether the defendant owned or rented the premises or whether the defendant is the sole occupant of the premises (see People v. Elwick, 20 Misc3d 1141 (A) (NY Co. Crim. Ct. 2008).”

“Here, the defendant is alleged to have been in the second basement bedroom when a search warrant was executed. Illegal drugs were found in another basement bedroom, the basement hallway, the livingroom on the first floor, and the kitchen area on the second floor. These facts are insufficient to demonstrate that the defendant exercised the requisite dominion and control over the areas from which the marijuana and controlled substances were recovered by the police (see People v. Brown, 240 AD2d 675 [2d Dept. 1997][evidence found insufficient to establish dominion and control, where defendant was girlfriend of target of search warrant, and was merely present when contraband was recovered. The People showed no nexus between the defendant’s location in one of the basement rooms and the locations where the officers recovered drugs and contraband. Therefore, the defendant’s motion to dismiss the charges for facial insufficiency is GRANTED.”

What is interesting is that the Court made no reference to the defendant’s drivers license reflecting the location as his residence. Further, the outcome could have changed significantly if the defendant stated he was aware of the drugs or was involved in the sale or possession of them. Could the prosecution have circumstantially built up the accusatory instrument? That, I do not know, but this decision should not be looked at as a blanket and all encompassing decision in such cases. Each case and determination of constructive possession will turn on the facts presented and set forth in the respective accusatory instrument.

To learn more about New York drug crimes including sentencing, Seventh Degree Possession, Second Degree Possession, misdemeanors and felonies, follow the links found throughout this entry and below.

A New York criminal defense firm, Saland Law PC’s founding criminal lawyers served as prosecutors in the New York County (Manhattan) District Attorney’s Office.


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