Legal Presumptions

Unless a police officer is alleging that he personally found the alleged substance on your person or witnessed you purchasing it, the charge of possession may be based on certain legal presumptions about what constitutes possession. Your criminal defense attorney should have a thorough knowledge of these presumptions and what they may mean for any potential defense. Depending on the circumstances of your case, the presumptions may be relevant to your defense and your criminal lawyer's ability to challenge the allegations against you.

The first presumption, often known as the "automobile presumption," comes into play when a controlled substance is found in a private vehicle, in which case every person in the car may be said to have knowing possession of it. However, there are several notable exceptions to this rule; the presumption does not apply if:

• someone in the car has the alleged substance concealed upon his or her person, in which case the other occupants are not considered to be in possession of the substance.
• the owner of the substance is authorized to have it and it is in the same container as when it was received (for example, a person with a prescription for oxycodone who keeps it in the original prescription bottle).
• the person is a licensed taxi or livery driver operating in a lawful manner as such.

According to this presumption, if the substance is in open view, there is a presumption that all occupants of the car (except where specified above) possessed it. Note that marijuana is not subject to this presumption.

The second presumption does apply to marijuana, along with other substances, and involves a substance being found in a room. Under this presumption, possession may presumed for every person in close proximity to any narcotic substance found in open view in a room. As with the "automobile presumption," this presumption does not apply if the substance is concealed upon someone's person or if the substance lawfully belongs to someone in the room. It is critical to note that the presumption and its nuances are much more detailed than briefly described here. Do not rely on this brief analysis in lieu of an in depth consultation as to New York drug laws with your own criminal attorney.

Two questions your attorney might consider if you are charged under this presumption are whether the drugs were in fact in "open view" and whether you were indeed in "close proximity." There have been many cases whose outcome hinged on the specific legal interpretation of these phrases. For example, although "close proximity" is not always defined as being in the same room, if the drugs are discovered in a separate room from the defendant, "close proximity" may not apply [People v. Davis, 195 Misc.2d 858 (Rochester Cty Ct. 2003); People v. Caban, 90 Misc.2d 43 (Kings County 1977)]. In addition, the intent to sell must be established to charge a defendant under this presumption; the alleged existence of the drugs in the room is not sufficient evidence on its own of the intent to sell. [People v. Uribe, 113 Misc.2d 207 (New York County 1982).]

Our law firm serves clients in Manhattan, Brooklyn, Bronx, Queens and Westchester County. Call us at 212.312.7129 or contact us online today to speak with our New York attorneys and former Manhattan prosecutors about misdemeanor drug crimes.

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In depth information on drug crimes, statutes and laws is located on Saland Law's New York Criminal Lawyer Blog and its drug crime section.