Constructive Possession In Drug And Controlled Substance Cases

By Michael Joseph on March 07, 2013

Our White Plains criminal defense lawyers handle drug cases in the Westchester Criminal Courts on a regular basis. We are seeing more and more cases where one person in a car, building or even on the street has drugs such as cocaine, heroin, meth or oxycotin on them and everyone in the car or near the person is arrested and charged with criminal possession of a controlled substance.

Many of our clients assume that if they don’t have the drugs on them, they cannot be charged with possession of a drugs. However, the New York law also recognizes the concept of constructive possession. In New York, the rule has long been that to support a charge that a defendant was in constructive possession of tangible property, 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.

The issue often becomes whether there is legally sufficient evidence to prove constructive possession. Under New York Criminal Procedure Law 70.10 [1], legally sufficient evidence means competent evidence which, if accepted as true, would establish every element of the crime charged and the defendant’s commission of it. New York Criminal Courts allow constructive possession to be proved by showing that a defendant exercised dominion and control over the place where contraband was seized or over the person who actually possessed the property. Whether a constructive possession of drugs case can be proved depends on a number of factors and often turns on fine details and the Courts have drawn very fine lines in determining whether constructive possession has been proven.

The Courts have recognized that knowledge of the presence of illegal drugs may be shown circumstantially by conduct or directly by admission, or indirectly by contradictory statements from which guilt may be inferred. Therefore, our New York City and White Plains criminal defense lawyers recommend that anyone who is arrested in a drug possession case not answer any questions. Our attorneys have seen numerous cases where our clients were arrested and did not have drugs on them, but drugs were found on a friend or somewhere in a car, so there was no case against them, but they admitted knowledge of the drugs which incriminated them. Had they just kept quiet and said nothing the case would have been unprovable. In one recent case, our drug defense lawyers won a major victory in a Class A drug case where Meth was found in a car and and everyone in the car was arrested. Since the client was one of several people in the car and the drugs were found on one individual and our client did not incriminate herself, she got a complete dismissal of all charges.

However, the New York Courts have also recognized that in the absence of any proof that a defendant had authority over person in actual possession of the drugs, there is no constructive possession. In another case, the New York Criminal Courts held that the evidence was legally insufficient to establish the defendant’s constructive possession of cocaine which was found in a back room of grocery store in absence of evidence that defendant owned, rented or had control over or a possessory interest in store or room.

Our Westchester criminal defense lawyers have handled drug cases in New York City including the Bronx, Queens, Brooklyn, Manhattan) and Westchester including White Plains, New Rochelle, Mount Vernon, Yonkers, Scarsdale, Valhalla, Greenburgh, Mount Kisco, Rye, Port Chester and Armonk.

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