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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)

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