As New York’s premier second amendment lawyers we closely monitor cases that may affect the ability of our client’s to lawfully be in possession of firearms and cases that affect our ability to fight gun charges. Late last year, a state appellate court issued a written opinion in a New York gun possession case discussing the concept of constructive possession. Constructive possession is a legal fiction by which a person can be found to have “possessed” an item without there being any direct evidence that the item was in the defendant’s immediate control. The concept of constructive possession often relies on circumstantial evidence suggesting that the defendant possessed an item. This opinion is a good example of how the concept of constructive possession works in practice.
According to the court’s opinion, law enforcement pulled over the defendant for a traffic stop. During the stop, the defendant fled the scene, speeding off around a corner that led down a dead-end street. The sheriff’s deputy knew that the defendant had gone down a dead-end road that had a fence on one side and a wooded area on the other. The deputy waited for the defendant to reemerge.
About a minute later, the defendant’s car reemerged but got stuck in a ditch. The defendant was arrested and the deputy searched the area around the one-way street, finding a gun in the wooded area and a hat alongside the road. The gun was about 12-16 feet from the road. DNA samples from both the gun and the hat matched the defendant’s DNA. A jury convicted the defendant, who appealed his conviction. Specifically, the defendant argued that the evidence was insufficient to prove that he possessed the weapon.