The defendant in this case is appealing an order that revoked his community control and resulted in a five year prison sentence. The defendant argues that the state did not establish that he had constructive possession of marijuana that was found in a car that he was a passenger in.
A New York Criminal Lawyer said the defendant was suspected of drug activity and for this reason the police department kept the defendant’s studio apartment under surveillance. The officer watching the apartment saw an unknown couple driving a white car approach the defendant. The couple got out of the car and went inside the apartment with the defendant. When the couple came back out it appeared as if the man had stuffed something inside the front of his pants. All three got into the car, the man drove, the woman sat in the passenger seat, and the defendant rode in the back.
The defendant’s parole officer was contacted because the defendant was confined to his office and home as part of his community control order. When the parole officer arrived the defendant was not there, but another gentleman was. She instructed the gentleman to have the defendant call her.
A Manhattan Criminal Lawyer said the car returned a short time later and the man driving got out and went inside the apartment. The defendant remained in the backseat. The man returned to the car and they left once again. The officer watching the apartment followed the car and pulled them over when they ran a stop sign.
The parole officer was called and when she reached the scene the defendant and the two others were already placed in squad cars.
When the officer approached the car he could see a gallon sized ziplock bag of marijuana (marijuana possession) on the back seat of the car. He also saw a garbage bag that contained a ziplock bag of marijuana as well.
The defendant said that the driver had handed the contraband to him when they got pulled over and told him to hide it. The defendant was arrested for possession. However, the defendant denies the pot being his.
Court Discussion and Decision
The defendant was found guilty of violating to conditions of his parole. First, he failed to live and remain at liberty without violating any laws and he possessed drugs that were not prescribed by a doctor.
However, the court must look at the evidence that was provided in the case and after review it is found that the evidence is insufficient to establish that the defendant had possession of the marijuana. The defendant stated that the other man had tossed the bag to him, but this momentary possession does not establish dominion and control over the substance.
The court finds that the trial court abused their discretion in ruling that the defendant violated his community control conditions. For this reason, the court is ruling in favor of the defendant and reversing the previous order. The case is remanded to the trial court for considerations of the other two violations and whether they alone are enough for revoking the community control.
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