New York Criminal Attorney Blog
Earlier this month, a court issued a written opinion in a New York gun possession case discussing the concept of constructive possession. Ultimately, the court concluded that the prosecution’s evidence was sufficient to establish that the defendant exercised “dominion and control” over the weapon. Thus, the court affirmed the defendant’s conviction.
The Concept of Constructive Possession
Under New York criminal law it is illegal to possess certain items, such as some types of guns or drugs. To establish criminal liability for a possessory offense, the prosecution must be able to present evidence showing that the defendant was in possession of the item. In this context, possession can be actual or constructive.
Actual possession is established when an object is found on the defendant. Constructive possession, on the other hand, refers to when an object is not in the defendant’s actual possession, but it can be said that the defendant “exercised dominion or control” over the object. For example, it is under a constructive possession theory that someone can be charged for a gun found in the trunk of a car.
The Facts of the Case
According to the court’s opinion, the defendant was arrested after police recovered a loaded gun and 103 bags of heroin in the apartment he shared with his girlfriend and their two young children. Evidently, the weapon was found wrapped in baby clothing after it fell from a playpen. At trial, the defendant argued that there was legally insufficient evidence to find him guilty of possessing the gun because it was not found on him and was found in an apartment that he shared with other people.
The court rejected the defendant’s argument, finding that the evidence was sufficient to establish that he exercised dominion or control over the gun. The court explained that exclusive access to an object is not necessary to find that someone constructively possessed the object, noting that “several individuals may an object simultaneously, provided each individual exercised dominion and control over the object or the area in which the object is located.”
Here, the court noted that while the gun was found in an apartment that was shared by multiple people, the evidence was sufficient to show that the defendant exercised dominion or control over the weapon. The court noted that the gun was wrapped up in baby clothing and the defendant lived in the apartment with his two toddlers. This, the court held, reasoned “went beyond defendant’s mere presence in the residence at the time of the search and established a particular set of circumstances from which a jury could infer possession of the contraband.”
Have You Been Arrested for a New York Possessory Offense?
If you have recently been arrested for a New York gun crime, contact the dedicated New York criminal defense attorneys at the law offices of Tilem & Associates. At Tilem & Associates, we help those who have been charged with serious New York crimes defend their freedom by zealously advocating on their behalf. We are prepared to file and argue all pre-trial motions to exclude illegally obtained evidence, and will be ready to fight your case at trial in the event one is necessary. To learn more about how we can help you with your situation, call 877-377-8666 to schedule a free consultation today.
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