Published on:

Defendant Argues Constructive Possession Charge


The defendant is appealing a verdict of guilty to possession of cocaine and possession of marijuana in the amount of less than 20 grams. The defendant was sentenced to 22 months in prison on the cocaine charge and for a year in the county jail on the marijuana charge. She argues on appeal that the state failed to prove that she constructively possessed the marijuana.

Case Background

The defendant was originally charged with possession of cocaine with intent to sell or deliver and possession of marijuana in an amount less than 20 grams. During the trial an officer testified that she made a traffic stop of the car that the defendant was driving. The car contained the defendant and two others. When the car was stopped the male got out of the car and ran and was not apprehended. The officer called for backup.

A New York Criminal Lawyer said one of the other officers that arrived at the scene testified that he saw the defendant take her left hand that contained something white and place the object between the front seat and the console. He believed the object to be crack cocaine.

The car was searched and the officer that conducted the search stated that he recovered suspected crack cocaine in the area between the seat and the console, where he saw the defendant put her hand. There was also crack cocaine found on the floorboard behind the front seat. Another officer pointed out a joint that was in the ashtray of the vehicle. The officer admits that he could not tell if the joint was hot or cold.

All of the substances were tested by a forensic chemist. The tests came back that the rocks were cocaine and weighed 4.6 grams. The joint was of marijuana.

During the trial an expert narcotics investigator was called to the stand and testified that the amount of cocaine that was found was inconsistent with personal use. A Manhattan Criminal Lawyer said this testimony was objected to by the defendant.

When the state rested during the trial the defendant moved for acquittal on both charges. This motion was denied. The jury found the defendant guilty of the lesser included offense of possession of cocaine and guilty of possession of marijuana.

Case Discussion and Decision

The defendant states that the state did not have sufficient evidence to show that she had constructive possession of the marijuana. She states that the marijuana could have belonged to the other passenger in the car and that the state failed to make a prima facie case against her in this regard and that she should have been acquitted on the possession of marijuana charge.

In regard to the marijuana charge we find in favor of the defendant. The judgment is reversed and dismissed. In regard to the appeal of the cocaine charge we find that the court did not error in allowing an expert witness to testify about the amount of cocaine not being consistent with personal use. This judgment and sentencing is affirmed.

Stephen Bilkis & Associates offers law offices around New York City. You may call us at any time to speak with an experienced lawyer regarding any legal issue that you may have, whether it involves sex crimes, theft or drug possession. A free consultation will be provided to you on your first visit to our offices.

Contact Information