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No Element of Intent in Constructive Possession of Contraband

The First Department determined there was no “intent” element to the constructive possession of contraband.  The marijuana and stun gun at issue were in an apartment defendant shared with his aunt and nephew. The defendant argued that, even if he was fully aware the items were in the apartment, the People were required to prove that he intended to exercise dominion and control over them.  The court wrote:

In defendant’s view, even if he was fully aware that there was contraband in the apartment he shared with his aunt and nephew, and even if he had unfettered control over the areas where the contraband was located, he was not guilty of possessing it since he merely tolerated his drug-dealing nephew’s use of the apartment as a repository for the contraband and had nothing else to do with it. We disagree.

There is no element of intent in constructive possession. A long line of authority makes clear that knowing constructive possession of tangible property is established where the People prove knowledge that the property is present and “a sufficient level of control over the area in which the contraband [was] found” … People v Rodriguez, 2013 NY Slip Op 06495, 1st Dept 10-8-13

 

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