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The drugs were within his immediate control

A New York Criminal Lawyer said that, the evidence presented herein, when viewed, as it must be, in the light most favorable to the prosecution, was legally sufficient to enable the members of the jury to have determined that the essential elements of the crime had been established beyond a reasonable doubt, including the fact that defendant was in constructive possession of the cocaine in question. In that regard, the drugs were recovered from a vehicle which he had been observed driving a week earlier, for which he possessed the registration and insurance card in his pocket and which he was standing beside when apprehended. According to defendant’s parole officer, Patricia Street, she visited his home on April 22, 1988, and noticed two cars in the backyard, one of which was black and highly decorated with headers and gold paint designs. The following month, on May 11, 1988, she was walking near her office on 42nd Street and Eighth Avenue in Manhattan when she spotted defendant driving a two-door car with license plate number “ASW 96”. Although the automobile was now red, Street believed that it might be the same vehicle she had noticed in defendant’s yard because it was decorated in the same elaborate manner. Moreover, as she approached her office, she saw the car which defendant had just been driving parked in a nearby parking lot.

A New York Cocaine Possession Lawyer said that, defendant, who was scheduled to make a regular visit that day, was waiting for her when she reached her office. A computer check of the subject vehicle disclosed that it was registered to the owner but had not been reported stolen and that defendant’s driver’s license had been suspended in 1984. At his next appointment on May 18, 1988, defendant claimed, in response to Street’s inquiry, that on both that day and on May 11th, he had taken the subway to her office. In any event, at the conclusion of the meeting, which lasted from approximately 4:00 P.M. to 5:50 P.M., he immediately proceeded to the adjacent parking lot where Parole Officer observed him heading directly to the passenger side of a red Camaro whose license plate number was “ASW 96”. The Parole Officer and other parole officers arrested him as he stood beside the automobile conversing with a woman who was sitting in the passenger seat. A package containing vials of cocaine was discovered on the floor on the driver’s side of the car.

The issue in this case is whether defendant is guilt of drug possession.

In order to demonstrate constructive possession, the People were not required to prove that defendant physically possessed or even touched the contraband. Rather, it was necessary to show simply that the drugs were within his immediate control and reach and, therefore, were available for his use if he so desired. Neither defendant’s absence from the vehicle for a period of time nor the presence of the woman in the passenger seat nor even the fact that it was not utterly inconceivable that another person might have placed the cocaine in the Camaro invalidates the jury’s verdict. Certainly, mere access by others to the area does not by itself preclude a finding of constructive possession. Further, the evidence at trial was devoid of any indication concerning why or how some unknown individual simply chose defendant’s vehicle to be the receptacle of contraband. Similarly, there was no testimony that the female passenger had any connection with the drugs or was seen by the waiting parole officers or anyone else disposing of them, and the People decided against prosecuting her. As this court stated in one case, “the jury properly rejected the highly speculative possibility that a stranger placed such valuable property in the automobile, in defendant’s absence, without assurances of being able to retrieve it.” Consequently, the only reasonable conclusion based upon the facts educed at trial is that defendant knew that the cocaine was in the car.

Finally, the record of this case does not reveal any reversible evidentiary rulings on the part of the trial court. The judge was certainly within his discretion in refusing to permit defendant to call witnesses to alleged drug transactions occurring in the same parking lot months after his arrest since “even where technically relevant evidence is admissible, it may still be excluded by the trial court in the exercise of its discretion if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury”. In addition, in ascertaining the weight of a controlled substance, it is the aggregate weight which is crucial rather than the pure weight of the drug. Thus, the judge appropriately disallowed defense counsel from probing whether the police chemist removed water from the cocaine prior to measuring it. We have considered defendant’s remaining contentions and deem them to be lacking in merit.

Accordingly, the court held that the judgment of the Supreme Court, New York County, rendered on December 21, 1988, convicting defendant, following a jury trial, of criminal possession of a controlled substance in the fourth degree and sentencing him, as a predicate felon, to an indeterminate term of imprisonment of from three to six years, is affirmed. Arson and bribery were not charged.

The rule is that, in order to demonstrate constructive possession, the People were not required to prove that defendant physically possessed or even touched the contraband. Rather, it was necessary to show simply that the drugs were within his immediate control and reach and, therefore, were available for his use if he so desired.

If there is a violation of this rule, seek the representation of a New York Criminal Attorney and New York Drug Possession Attorney at Stephen Bilkis and Associates in order to defend your day in court.

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