The appellant in this case was charged by information with possession of over five grams of marijuana (marijuana possession). He filed a sworn motion to have the reciting dismissed. The motion in part stated that he lived in the home with his wife and children and that while the search of the home revealed marijuana, he was not in actual possession of any type of controlled substance at the time the search took place. The state filed for a leave to amend, which was granted.
The state then prepared to move that the defendant was in constructive possession of a controlled substance. The state plans to prove this by the fact that the defendants name and address were on the box that contained the marijuana and that the marijuana was found in his bedroom closet.
A New York Criminal Lawyer said when it comes to constructive possession, the general rule is that it can be stated in fairly simple terms. Proof of guilt on this theory consists of three basic elements. First, the accused must have control and dominion over the contraband. Second, the accused must be aware that the contraband is in his presence. Finally, the accused must know about the illicit nature of the contraband.
An NY Criminal Lawyer said all of these elements can be proved by circumstantial evidence. When the evidence is found in a car, home, etc. the accused can be thought to have constructive possession of the contraband.
The evidence that has been brought before the court supplies enough evidence to support the possibility of the constructive possession of the marijuana by the defendant. The ruling from the trial court to deny the motion to dismiss is affirmed.
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