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EVIDENCE OF CONSTRUCTIVE POSSESSION OF DRUGS IN AN APARTMENT LEGALLY INSUFFICIENT, CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction for possession of a controlled substance, determined the circumstantial evidence of constructive possession of the drugs found in an apartment was legally insufficient:​

Although defendant was present in the apartment at the time when the police executed the search warrant, “no evidence was presented to establish that defendant was an occupant of the apartment or that [she] regularly frequented it”… . The People relied primarily on the trial testimony of a police investigator, who testified that defendant was listed in the records management system of the Utica Police Department (UPD) as living at the apartment. The investigator acknowledged on cross-examination, however, that he did not know how the UPD obtained that information and that the information in the records management system is not always current or even accurate. The investigator also testified that he surveilled the building in which the apartment was located “hundreds” of times over the course of a three-week investigation, and that he observed defendant “at that location” only twice. Although the investigator testified that “typical women’s clothing” was found in the apartment, he failed to offer specifics except for three pairs of footwear, which he believed might fit defendant. By contrast, he testified in detail about men’s underwear and men’s deodorant found in a dresser drawer, men’s work boots piled near the dresser, and men’s sweatshirts hanging over a couch. Photographs of the clothing were received in evidence, and those photographs did not depict any “typical women’s clothing,” with the possible exception of one or two pairs of footwear. People v Williams, 2018 NY Slip Op 04173, Fourth Dept 6-8-18

CRIMINAL LAW (EVIDENCE OF CONSTRUCTIVE POSSESSION OF DRUGS IN AN APARTMENT LEGALLY INSUFFICIENT, CONVICTION REVERSED (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, (EVIDENCE OF CONSTRUCTIVE POSSESSION OF DRUGS IN AN APARTMENT LEGALLY INSUFFICIENT, CONVICTION REVERSED (FOURTH DEPT))/CONSTRUCTIVE POSSESSION (CRIMINAL LAW, (EVIDENCE OF CONSTRUCTIVE POSSESSION OF DRUGS IN AN APARTMENT LEGALLY INSUFFICIENT, CONVICTION REVERSED (FOURTH DEPT))

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