You are here: / / JURY SHOULD NOT HAVE BEEN INSTRUCTED ON CONSTRUCTIVE POSSESSION, NEW TRIAL...
,

JURY SHOULD NOT HAVE BEEN INSTRUCTED ON CONSTRUCTIVE POSSESSION, NEW TRIAL ORDERED.

The Fourth Department reversed defendant's conviction for possession of a weapon, finding the People's request for a constructive-possession jury instruction should not have been granted. The defendant had been seen holding an object that appeared to have been fired and DNA evidence tied defendant to a revolver that was found five feet away from where defendant was lying, shot, in a parking lot.  There was no evidence which warranted a jury charge on constructive, as opposed to physical, possession of the weapon:

To meet their burden of proving defendant's constructive possession of the [revolver], the People had to establish that defendant exercised dominion or control over [the revolver] by a sufficient level of control over the area in which [it was] found” … . Here, we conclude that there is no view of the evidence that defendant had constructive possession of the revolver … . Defendant's “mere presence in an area where” the revolver was found “is not sufficient to establish that he exercised such dominion and control as to establish constructive possession” … . We further conclude that the error is not harmless inasmuch as we cannot determine if the verdict was based upon defendant's physical possession of the revolver or his constructive possession of it … . People v Diallo, 2016 NY Slip Op 02213, 4th Dept 3-25-16

CRIMINAL LAW (JURY SHOULD NOT HAVE BEEN INSTRUCTED ON CONSTRUCTIVE POSSESSION, NEW TRIAL ORDERED)/EVIDENCE (CRIMINAL LAW, JURY SHOULD NOT HAVE BEEN INSTRUCTED ON CONSTRUCTIVE POSSESSION, NEW TRIAL ORDERED)/CONSTRUCTIVE POSSESSION (CRIMINAL LAW, JURY SHOULD NOT HAVE BEEN INSTRUCTED ON CONSTRUCTIVE POSSESSION, NEW TRIAL ORDERED)

You might also like
FAMILY COURT DID NOT HAVE THE AUTHORITY TO FIND A FOSTER HOME FOR A FAMILY’S PET CAT (FOURTH DEPT).
FAILURE TO IDENTIFY A SPECIFIC VIOLATION OF THE ELECTION LAW OR PARTY RULE REQUIRED THE DISMISSAL OF THE PETITION, JUDICIAL INTERVENTION NOT WARRANTED (FOURTH DEPT).
Reports by Attorneys Which Relate to an Insurer’s Decision to Accept or Reject a Claim Are Discoverable—Reports by Attorneys Made After the Claim Is Rejected Are Not Discoverable
JUDGE PROHIBITED FROM ADDING PROBATION TO DEFENDANT’S SENTENCE OUTSIDE OF DEFENDANT’S PRESENCE, ONCE DEFENDANT WAS RELEASED FROM JAIL ANY ATTEMPT TO INCREASE HIS SENTENCE PRECLUDED BY DOUBLE JEOPARDY RULE.
PETITIONER DID NOT HAVE STANDING TO SEEK A STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) REVIEW OF A ONE-DAY SQUIRREL-HUNTING FUND-RAISING EVENT (FOURTH DEPT).
PLAINTIFF WAS INJURED USING DEFENDANT’S BOW; DEFENDANT MOVED FOR PERMISSION TO PERFORM TESTS ON THE BOW WHICH INVOLVED REMOVING AND THEN REPLACING THE DAMAGED COMPONENT OF THE BOW; THE JUSTIFICATION FOR SUCH TESTING WAS NOT DEMONSTRATED (FOURTH DEPT).
AN APPELLATE COURT CANNOT CONSIDER A MOTION NOT RULED UPON BELOW; MATTER REMITTED FOR A RULING ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL (FOURTH DEPT).
THE CUSTODIAL INTERFERENCE OFFENSES DID NOT TAKE PLACE IN ONTARIO COUNTY AND DID NOT HAVE A PARTICULAR EFFECT ON ONTARIO COUNTY; THEREFORE THE COURT DID NOT HAVE JURISDICTION OVER THEM (FOURTH DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

SEARCH WARRANT WAS NOT BASED UPON PROBABLE CAUSE TO BELIEVE THE EVIDENCE SOUGHT... MIDTRIAL ORAL MOTION TO SUPPRESS, MADE AFTER THE PEOPLE BELATEDLY PROVIDED THE...