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THE PROOF DEFENDANT CONSTRUCTIVELY POSSESSED A FIREARM FOUND IN THE CEILING OF A HOUSE WHERE DEFENDANT WAS A GUEST WAS LEGALLY INSUFFICIENT; DNA EVIDENCE MAY HAVE DEMONSTRATED DEFENDANT POSSESSED THE FIREARM AT SOME POINT IN TIME, BUT IT DID NOT DEMONSTRATE CONSTRUCTIVE POSSESSION AT THE TIME THE FIREARM WAS SEIZED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, over a dissent, determined the proof defendant constructively possessed a firearm was legally insufficient. The firearm was in the drop ceiling of a living room in which defendant was present as a guest. DNA evidence may have demonstrated defendant possessed the firearm at a point in time, but did not demonstrate constructive possession at the time the firearm was seized:

A defendant’s mere presence in the house where the weapon is found is insufficient to establish constructive possession, and it is undisputed here that defendant had no connection to the apartment other than being there for a brief period of time for the purpose of gambling … . Further, the People failed to establish that defendant “exercised dominion or control over the [handgun] by a sufficient level of control over the area in which [it was] found” … .

… [D]efendant’s contemporaneous text messages did not evince defendant’s consciousness of guilt and, in any event, “mere knowledge of the presence of the handgun would not establish constructive possession” … . Further, although evidence that defendant’s DNA profile matched that of the major contributor to DNA found on the handgun and that other individuals in the apartment were excluded as contributors thereto would support an inference that defendant physically possessed the gun at some point in time … , we conclude that it was not sufficient to support an inference that defendant had constructive possession of the weapon at the time that it was discovered … . People v King, 2022 NY Slip Op 03606, Fourth Dept 6-3-22

Practice Point: Here DNA evidence suggested the defendant possessed the firearm at some point. But defendant’s presence as a guest  in the room where the firearm was found was not sufficient evidence of constructive possession of the firearm. Conviction reversed.

 

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