The Fourth Department determined the evidence of constructive possession of drugs found in defendant’s sister’s (not defendant’s) residence was sufficient. Defendant’s sentence was deemed too harsh, even for a repeat offender, and was reduced in the interest of justice:
” Constructive possession can be established by evidence that the defendant had dominion and control over the [drugs and drug paraphernalia] or the area in which [they were] found’ . . . Exclusive access, however, is not required to sustain a finding of constructive possession’ ” … . Here, the drugs and drug paraphernalia were recovered from various locations inside a residence in which defendant’s sister, her boyfriend and her children resided. It is undisputed that defendant did not reside in that residence. Nevertheless, there was ample evidence that defendant constructively possessed the contraband. * * *
Unlike other constructive possession cases, where the testimony at trial is limited to physical evidence linking a defendant to a location and possession of the drugs must be inferred from the defendant’s ties to the residence … , here there was testimony that defendant on three occasions admitted that the drugs in the house belonged to him, and the sister’s boyfriend testified that the drugs in his residence belonged to defendant. Moreover, the evidence established that defendant had sold cocaine from that residence less than three weeks before the search warrant was executed. People v Tuff, 2017 NY Slip Op 08971, Fourth Dept 12-22-17
CRIMINAL LAW (EVIDENCE DEFENDANT CONSTRUCTIVELY POSSESSED DRUGS THAT WERE LOCATED IN HIS SISTER’S (NOT HIS) RESIDENCE SUFFICIENT, SENTENCE REDUCED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, CONSTRUCTIVE POSSESSION, EVIDENCE DEFENDANT CONSTRUCTIVELY POSSESSED DRUGS THAT WERE LOCATED IN HIS SISTER’S (NOT HIS) RESIDENCE SUFFICIENT, SENTENCE REDUCED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/CONSTRUCTIVE POSSESSION (EVIDENCE DEFENDANT CONSTRUCTIVELY POSSESSED DRUGS THAT WERE LOCATED IN HIS SISTER’S (NOT HIS) RESIDENCE SUFFICIENT, SENTENCE REDUCED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/APPEALS (INTEREST OF JUSTICE, SENTENCE REDUCED IN THE INTEREST OF JUSTICE (FOURTH DEPT))