August 24, 2020

What Is Constructive Possession? | Cup of Joe with Soul

What Is Constructive Possession?

Driving up through New York’s Southern Tier during the last week of August on the way up to Syracuse, with the GW Bridge 175 miles behind you, you really get the sense that “The Empire State” was perfectly nicknamed by George Washington back in the day. Washington was given a full map of New York prior to the Battle of New York, when he remarked on New York's natural geographic advantages, proclaiming New York the "Seat of an Empire".

This week’s case brings us west of Syracuse to Niagara Falls, New York. Charles Cyphers is from Niagara Falls. He was an actor known for his work in the films of John Carpenter, especially his role as Sheriff Leigh Brackett in the 1978 hit horror movie Halloween. Also from Niagara Falls is Tommy Tedesco whose playing credits include the theme from television's BonanzaThe Twilight ZoneGreen AcresM*A*S*H,  and….Batman.

This is the story of Gerald Hunt, also from Niagara Falls. He is 25 years old. He was arrested for gun possession. It was not his gun.

Our case study will be presented by New York Law student, Soultana Toskos (2L). Soul was our firm’s office manager until one day she decided that the law was her path.

The case interested Soul because it involves a concept that is extremely confusing in criminal law: constructive possession. That is when the law says that you have something in your possession, even though it is not!

But before we hear from Soul, let’s hear a little testimony from the trial.

Testimony of Arresting Officer

Q: Officer, why did you stop the vehicle that Gerald was in?

A: Gerald was a passenger in a vehicle that attempted to make a U-turn on the Peace Bridge. I activated the emergency bar lights and siren. I pulled the cruiser behind the vehicle and directed the driver to pull over to the shoulder. The driver complied.

Q: What happened next?

A: We inspected the vehicle and uncovered two loaded firearms along with a mask and ammunition in a bag in the trunk of the vehicle. We then arrested everyone in the vehicle.

Q: Was DNA testing performed on the firearms?

A: Yes. DNA analysis was conducted on both the pistol and the revolver found in the bag. The DNA profile on the revolver matched Hunt. The DNA profile on the pistol matched the driver.

Testimony of Gerald Hunt

Q: What were you doing in the car, Gerald?

A: We were going into Canada to get fireworks. At least, that’s what I thought. That’s what the driver told me.

Q: Gerald, did you ever see the revolver before?

A: I did. I was at the driver’s house about a month ago. I was sitting in the living room. Hanging out. He walked into the room and he says, “hey!” He tosses a bag at me and I caught it. I was curious, you know? I opened the bag and I pull out that same revolver.

Q: What did you do?

A: I was scared. I took the revolver and out it back in the bag and tossed it back. I was like, what the hell?

Q: Did you know the revolver was in the trunk?

A: No way. We were going to pick up fireworks.


A few years ago, Gerald Hunt was a backseat passenger in a friend’s car when they approached a border checkpoint in upstate New York. In the vehicle’s locked trunk, patrol agents found a loaded handgun in a duffel bag. Upon investigation, it was determined that the car and duffel bag belonged to the driver and that Hunt’s DNA matched a substantial portion of DNA found on the weapon. 

The Charge

Under New York Penal Law § 265.03 [3], a person is guilty of criminal possession of a weapon in the second degree when they knowingly possess any loaded firearm and such possession is not in their home or place of business. Additionally, possession can be physical or constructive.

What is Constructive Possession?

While physical possession is proven by a firearm being on one’s person, constructive possession is established by dominion or control over the area in which the firearm is located or over whomever it was seized from. 

The Verdict

The prosecution relied heavily on the DNA evidence, and the jury proceeded to convict Gerald Hunt of criminal possession of a weapon in the second degree. 

On Appeal

Hunt appealed his conviction, arguing that the jury was not justified in finding that he had possessed the gun beyond a reasonable doubt. The jury largely based their verdict on Hunt constructively possessing the handgun because of the DNA match and the weapon’s presence in in the car in which he was a passenger. Upon further examination however, such a finding of constructive possession is flawed. 

Gerald Hunt was not the operator nor owner of the vehicle, but rather a passenger seated in the backseat. He also did not own the duffel bag in which the firearm was found, and did not possess car keys or any other means of retrieving the handgun from the locked trunk. As the court astutely noted, mere knowledge of the presence of a firearm does not constitute constructive possession! 

Therefore, since Gerald Hunt did not have control over the car in which the firearm was located, the Appellate Court reversed his conviction and dismissed his indictment.


In this case, Gerald’s mere presence in the vehicle where the handgun was found did not establish that he constructively possessed it.

Although an inference could be made from the evidence that Gerald had physically possessed the gun at some point in time, that evidence alone did not establish that Gerald actually possessed the handgun on the date and at the time alleged in the indictment.

The conviction was reversed.

Read the full case report HERE.

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