When someone is charged with the illegal possession of drugs in the state of New York, how does a prosecutor prove that the person is guilty as charged?

Could someone who is falsely accused of drug possession be convicted anyway? What are your rights and options if you are accused of illegally possessing drugs in New York? How can a Long Island drug crimes lawyer help?

Here’s what you need to know about drug possession and the law in our state.

While having a small amount of an illegal drug for your own personal use may not be considered the most egregious crime committed in New York, a drug possession conviction can still land a defendant behind bars in this state.

Scores of New York statutes cover the sale, cultivation, manufacture, distribution, and trafficking of illegal drugs.

The criminal penalties for those who are convicted of the illegal possession of drugs will hinge to a large extent on the amount of drugs or money involved, the type of drugs, whether weapons or minors were involved, and a defendant’s criminal history.

But precisely what does the state have to prove to convict someone of illegal drug possession?


The answer is that the prosecutor must prove beyond a reasonable doubt that the defendant had possession – “actual” possession, “constructive” possession, or “joint” possession – of illegal drugs.

In many drug cases, these legal concepts of actual possession and constructive possession will come into play.

What’s called actual possession is usually simple to prove, while the constructive or joint possession of drugs may be more difficult for a prosecutor to demonstrate.

How are these terms defined? “Actual” possession usually means that the police discovered drugs on a defendant’s “person” – that is, in a purse, pocket, backpack, stashed in someone’s socks or shoes, or sometimes even swallowed.

If the search of the defendant’s person was conducted legally, the testimony of the officer who discovered the drugs is usually sufficient to convict the defendant.


A defendant’s “constructive” possession of illegal drugs is presumed when the drug is found in a location where the defendant had “dominion and control” over the area.

Legally speaking, a conviction based on constructive possession means that a defendant had could and/or intended to possess and control the illegal drugs.

Constructive possession does not have to be proven by a prosecutor – it can simply be inferred. For example, if illegal drugs are discovered in a defendant’s desk or refrigerator, it can be “inferred” that the defendant had dominion and control over the desk or refrigerator, and thus over the drugs.


“Joint possession” of illegal drugs means that more than one individual had constructive or actual possession of the drugs.

For example, if illegal drugs are discovered in a married couple’s kitchen or bedroom, the law in New York presumes that both spouses were in constructive possession.

Another example: When police officers stop a moving vehicle in traffic in New York and find illegal drugs in the console between the driver’s seat and the front passenger’s seat, the driver along with any passengers may all be presumed to have joint and constructive possession of the illegal drugs.

Clearly, proving actual possession is easier for the state than proving constructive or joint possession.

Constructive possession is tougher to prove because the state must show that a defendant had dominion or control over the area where the drugs were found and that the defendant knew or “should have known” that the drugs were illegal.

Simply being in the vicinity of illegal drugs is not sufficient to prove constructive possession. There must be something more. Other states like Oklahoma have different laws, so it is best to consult with an Oklahoma criminal defense attorney.


When a defendant lives alone or is the only occupant of a vehicle where illegal drugs are found, that usually establishes constructive – if not actual – possession.

But when a defendant is not the only resident in a home or the only occupant in vehicle, the state must provide something more to prove constructive possession.

That “something more” could be that the illegal drugs were found in the defendant’s bedroom or other personal effects, that the illegal drugs were located in plain sight, or in the case of a vehicle, that the illegal drugs were found under the defendant’s seat. Strict rules govern vehicle searches.

For instance, if a police officer stops you in traffic and believes that you are armed, you can be asked to step from the vehicle, and you can be searched.

If illegal drugs are found during a “pat-down” search conducted in these circumstances, the drugs can be seized, you can be charged with possession of illegal drugs, and your rights have not been violated.


New York drug laws are designed to produce convictions. To be convicted of illegal drug possession, the drugs do not even have to be in your personal physical possession.

Anyone on Long Island or in New York City who is charged with possession – constructive or actual – of illegal drugs will need the help of an experienced Long Island criminal defense lawyer who can explain how the concept of constructive possession may apply in your own drug possession case.

When someone is allegedly found possessing a large amount of illegal drugs, a simple possession charge can become the more serious charge “possession with intent to distribute.”

When the drug is particularly dangerous – such as methamphetamine, heroin, or cocaine – a charge of possession with intent to distribute can mean a severe mandatory minimum penalty.

However, unless a defendant confesses or is caught in the act, possession with intent to distribute must be inferred from circumstantial evidence like the way the drug was packaged or the discovery of the paraphernalia and equipment – such as scales and plastic bags – used to sell drugs illegally.

If you have been charged with the possession of illegal drugs – or with any drug crime – on Long Island or in New York City, you should contact an experienced Long Island criminal defense lawyer immediately.

A drug conviction can negatively impact your life and even land you in jail or prison.

Being advised and represented by a skilled defense attorney is imperative – and it’s your right – if you are charged with any drug crime in the state of New York.