Constructive Possession in New York Gun Cases

It’s common knowledge that you can be prosecuted for a New York gun crime if police officers find a gun on you. But what about if the police find a gun in the car you are riding in? Or if they find a gun in your home or hotel room? In these situations, the doctrine of constructive possession comes into play.

Constructive possession is a legal concept by which a court can find that a person had “control” over an item, even though the object was not in that person’s physical possession at the time. In a recent New York gun case, the court was tasked with determining whether the defendant could be found guilty of possession although the gun was not found on his person.

The Facts of the Case

According to the court’s opinion, police officers got a call that a person was bleeding in front of a residence. When police officers got to the scene, they saw the defendant outside. He was bleeding from the neck. The defendant told police that he was inside his home, when he was shot through a window.

The officers went into the home and, after conducting a search, found a submachine gun in an open drawer. Under the gun was a letter addressed to the defendant. The defendant was arrested and taken to the station, where he was interviewed by detectives. The defendant told one detective that he was shot while outside his aunt’s home. However, he later told the detective that he had recently paid a friend $100 to stay in the home where he was shot.

The prosecution did not present any fingerprint evidence. However, there was testimony from an expert that the DNA on the gun belonged to two different people, one of which was the defendant.

The defendant testified in his own defense, explaining that he had been living with his aunt, but she had kicked him out. At that point, he paid a friend $100 to stay at his place. While at his friend’s place, he was shot through the window. He did not know who shot him. He explained that, after he realized he was shot, he went looking for a towel. He opened the drawer, saw the gun, and kept looking for a towel.

At the conclusion of the trial, the defendant asked the court to instruct the jury on constructive possession, but the trial court refused. The defendant was convicted and appealed. On appeal, the court held that, given the evidence presented, the defendant was entitled to the constructive possession instruction. The court explained that, the defendant’s mere knowledge of the gun was insufficient to prove his possession, and “a reasonable juror could have credited defendant’s testimony and concluded that he had constructive, knowing, but not voluntary, possession of the gun in question for a brief moment.” Thus, the court reversed the lower court’s denial of the defendant’s motion, and ordered a new trial.

Have You Been Arrested for a New York Gun Crime?

If you were recently arrested and charged with a gun offense in New York, the dedicated criminal defense lawyers at the Law Office of Mark A. Siesel can help. We represent clients facing all types of New York gun crimes, including those involving allegations of constructive possession. We also handle all New York DWI offenses and the related administrative proceedings. We pride ourselves in providing aggressive representation to each of our many clients, and zealously defend our client’s rights at every stage of the proceeding. To learn more, call (914) 428-7386 to schedule a free consultation today.