You are here: / / THE PROOF DEFENDANT CONSTRUCTIVELY POSSESSED A FIREARM FOUND IN THE CEILING...
, ,

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.

 

You might also like
MAINTENANCE FEES IMPOSED BY THE TOWN FOR TRIMMING AND REMOVING BRUSH ON PRIVATE PROPERTY ARE NOT TAXES, THEREFORE THE TOWN IS NOT ENTITLED TO CREDIT FROM THE COUNTY FOR UNPAID MAINTENANCE FEES, TWO JUSTICE DISSENT (FOURTH DEPT). ​
Case Remitted for Determination Whether Defendant Should Be Adjudicated a Youthful Offender/Record Insufficient to Determine Whether Court Erred In Not Disclosing to the Defendant the Written Submissions of the Victims Which Were Reviewed by the Court–Case Remitted to Make an Adequate Record for Review
WHERE THERE IS A DISCREPANCY THE ORDER MUST BE CONFORMED WITH THE DECISION (FOURTH DEPT).
GRAND JURY MINUTES SHOULD NOT BE RELEASED IN THIS CIVIL RIGHTS ACTION STEMMING FROM A FATAL SHOOTING BY A POLICE OFFICER.
Accepting a Verdict Before Responding to Jury Requests for Further Instructions and a Readback of Testimony Was a Mode of Proceedings Error Requiring a New Trial
THERE WAS NO CONFLICT BETWEEN NEW YORK AND PENNSYLVANIA LAW IN THIS PERSONAL INJURY CASE, THEREFORE NEW YORK LAW APPLIES AND THERE IS NO NEED FOR A CHOICE OF LAW ANALYSIS (FOURTH DEPT).
BECAUSE THE ISSUE WAS NOT PRESERVED, THE APPELLATE COURT DID NOT ADDRESS DEFENDANT’S OBJECTION TO THE TRIAL JUDGE’S PROHIBITING DEFENDANT FROM COMMUNICATING WITH HIS ATTORNEY DURING OVERNIGHT RECESSES WHEN DEFENDANT WAS ON THE STAND (FOURTH DEPT).
PLAINTIFF, A CANISIUS COLLEGE STUDENT IN 2020, DID NOT STATE A CAUSE OF ACTION FOR BREACH OF IMPLIED CONTRACT BASED ON THE SHIFT FROM IN-PERSON TO REMOTE LEARNING BECAUSE OF COVID (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

THE POLICE DID NOT HAVE PROBABLE CAUSE TO BELIEVE DEFENDANT HAD COMMITTED OR... DEFENDANT PLED GUILTY TO ATTEMPTED GANG ASSAULT, WHICH IS A LEGAL IMPOSSIBILITY...