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Court Discusses Constructive Possession in Drug Case


The defendant in this case was found guilty of possession of more than 20 grams of marijuana and possession of drug paraphernalia. A New York Criminal Lawyer said that on appeal, the defendant contends that the trial court erred in denying her motion for dismissal for the paraphernalia offense and the possession of a felony amount of marijuana offense because the state did not have enough evidence to support a conviction on these charges.

The defendant concedes that the state had enough evidence to convict her of the lesser charges of a misdemeanor offense for possession of marijuana for the two partially smoked joints that were in plain view.

Case Background

During the trial there was testimony provided that the appellant was a passenger of a car that was stopped for speeding. The officer testified that he approached the passenger side of the vehicle and smelled both raw and burnt marijuana. The officer states that he saw two joints in the cup holder of the center console. A K-9 alerted the center console and a bag containing over 90 grams of marijuana was found. The owner of the car was not in the car at the time.

The defendant testified that she was getting a ride to see her boyfriend and did not know that there was marijuana in the car.

Case Discussion and Decision

A Westchester County Criminal Lawyer said the appellant argues that the trial court erred by not granting her motion for a judgment of dismissal because the evidence failed to establish that she was in constructive possession of the marijuana and paraphernalia that were found in the console.
After reviewing the facts of the case the court reverses the finding that the appellant committed the offense of possession of paraphernalia and possession of over 20 grams of marijuana. The trial court is instructed to hold a new hearing for the charge of simple possession of marijuana.

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