There are two types of possession in New York drug crimes — actual and constructive. Significantly, constructive possession is an alternative theory to actual possession that allows a person to be charged with a drug-related offense, even if they did not have the controlled substance on their person. If you were arrested for a drug crime involving constructive possession, it’s crucial to have an experienced criminal defense attorney by your side who can challenge the prosecution’s case against you.

What is Constructive Possession of Drugs?

Unlike actual possession, it is not necessary to have physical possession of a controlled substance to be convicted of an offense involving constructive possession. Rather, constructive possession may occur when an individual exercises dominion or control over property that is not within their physical possession. Under New York law, a person has constructive possession of a controlled substance when they exercise a sufficient level of control over the area where it was found — and have the ability to use or dispose of it.

Some common examples of constructive possession in drug cases can include:

• Drugs found in your vehicle — Drugs found in the center console or glove compartment of your vehicle could lead to a charge of constructive possession, even if they do not belong to you.
• Drugs found in a shared living space — Drugs found in a shared apartment or home can result in a constructive possession charge if you had access to the area where they were found.
• Drugs found in a shared bag — If you borrowed a bag from someone and it contained a controlled substance, you could be charged with constructive possession.

Constructive possession may be proven through either direct or circumstantial evidence. Importantly, two or more people can have constructive possession at the same time. In such cases, both parties must exercise dominion over the drug and have a level of control over the area where it was found, sufficient to give each the ability to use or dispose of the drug.

New York’s Presumption of Constructive Possession

Under New York Penal Law § 220.25, criminal possession of a controlled substance is presumed when a drug is found in a private motor vehicle. However, there is an exception for drivers of vehicles for hire, individuals with a valid prescription, and situations where the drug is concealed upon the person of an occupant in the vehicle.

The law also specifies that the presence of drugs in an open room gives rise to a presumption of constructive possession. Exceptions are carved out for individuals with a valid prescription and situations where the controlled substance was on the person of an occupant.

While the prosecution typically has the burden to prove each element in a case, this legal presumption shifts the burden to the defendant. It is up to the defendant to rebut the presumption by presenting evidence to show that they were not in constructive possession of the drug.

How Can Constructive Possession Be Challenged?

There are a number of ways to challenge constructive possession, depending on the facts of your case. If you were charged with constructive possession of a controlled substance, a skillful attorney can work to build a strong defense. The following are some common defense strategies that can be used in a constructive possession case involving drugs:

• Unlawful search and seizure in violation of the Fourth Amendment
• Lack of access to the area where the drugs were found
• No knowledge that the drugs were present
• Lack of intent to exercise control over the drugs

If the controlled substance was found in an area that multiple people could access, reasonable doubt may be raised by arguing that it was unclear who possessed the item. Additionally, the absence of fingerprints can make it more difficult for the prosecution to establish that you exercised control over the area where the drugs were found.

Contact an Experienced New York Criminal Defense Attorney

If you are facing criminal charges involving constructive possession of a controlled substance, it’s vital to have the representation of a knowledgeable criminal defense attorney to fight for your rights. D’Emilia Law offers reliable representation and trusted counsel for a wide range of criminal offenses, including drug crimes, and works to achieve a positive outcome in every case. To schedule a consultation, contact us at 1-888-DEMILIA.