Friday, June 7, 2019

Lesser Included Offenses

by Jill Paperno

Author of "Representing the Accused: A Practical Guide to Criminal Defense"

Lesser included offenses may come into play at various stages of a case, such as a court's inspection of grand jury minutes and possible reduction of charges, pleas, TODs, the defense theory of the case, and as addressed below, the jury charge at the end of a case. 

There are times that you may wish to request that the jury be charged on a lesser included offense.  This means that if the jury concludes the defendant is not guilty of the top count, they may consider a lesser count.  Although it seems like you'd want to stop with the acquittal on the top count and not get a lesser charge (and sometimes that is a strategic decision to make) we also often recognize a jury may be reluctant to completely acquit, and since they hear the instructions on the lesser before they deliberate they know there's an option other than a complete acquittal in a case where they might not want to see the client walk. 

In CPL 1.20 (the definitions section - a good place to start with many issues) the term "lesser included offense" is defined.  The definition, in subdivision 37, states, "'Lesser included offense.' When it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a 'lesser included offense.' In any case in which it is legally possible to attempt to commit a crime, an attempt to commit such crime constitutes a lesser included offense with respect thereto."   

(In some cases attempts are not possible - those tend to be strict liability crimes - another discussion for another day.  Not all strict liability crimes fall within this category and you must do case research.) 

CPL 300.50  relates to submission of lesser included offenses to the jury when the case is charged by indictment.  CPL 360.50(2) relates to the submission when the case is charged by information.   

Pursuant to CPL 300.50(1), the court may in its discretion submit the lesser if "there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater." If the court is authorized to submit a lesser (it meets the reasonable view test) and either party requests the lesser, it must submit it.  "This reasonable view" test was addressed in a blog piece by one of our former colleagues in appeals, Jim Eckert.  I've attached the blog piece below.  There are several other subdivisions in this statute worth a read, including subdivision 6 relating to Rape 3 being a possible lesser given to the jury in Rape 1 cases.   

The Court of Appeals has articulated the lesser test as follows: 

A party who seeks to have a lesser included crime charged to the jury must satisfy a two-pronged inquiry. First, the crime must be a lesser included offense within the meaning of Criminal Procedure Law § 1.20 (37). Here, defendant asked the trial judge to charge second-degree manslaughter, which is a lesser included crime of second-degree intentional murder (see People v Tai, 39 NY2d 894, 352 NE2d 582, 386 NYS2d 395 [1976] [reckless manslaughter is a lesser included offense of intentional murder]). Second, the party making the request for a charge-down "must then show that there is a reasonable view of the evidence in the [**450]  [***452]  particular case that would support a finding that [the defendant] committed the lesser included offense but not the greater" (People v Glover, 57 NY2d 61, 63, 439 NE2d 376, 453 NYS2d 660 [1982]; CPL 300.50 [1]). In assessing whether there is a  "reasonable view of the evidence," the proof must be  looked at "in the light most favorable to [the] defendant" (People v Martin, 59 NY2d 704, 705, 450 NE2d 225, 463 NYS2d 419 [1983]), which requires awareness of "the jury's right to accept some part of the evidence presented  [****15] by either side and reject other parts of that proof" (People v Green, 56 NY2d 427, 434, 437 NE2d 1146, 452 NYS2d 389 [1982]). We have never, however, "countenance[d] selective dissection of the integrated testimony of a single witness as to whom credibility, or incredibility, could only be a constant factor" (People v Scarborough, 49 NY2d 364, 373, 402 NE2d 1127, 426 NYS2d 224 [1980]; see also People v Negron, 91 NY2d 788, 792, 699 NE2d 32, 676 NYS2d 520 [1998]).

People v Rivera, 23 N.Y.3d 112, 120-121 

Although it seems like it should be easy to figure out if a lesser meets the test set forth in CPL 1.20 (legally impossible to commit the top count without committing the lesser) and the reasonable view of the evidence test, there are many cases interpreting whether lessers are actually lessers based on the elements of the charge and the specific facts of the case under review.  So when you are prepping for trial, either take a look at the NYSDA lesser included chart, linked below, or do some research, or both. 

 Make sure you consider the mens rea of the greater and potential lesser.  In sex offenses this is a bit more complicated.  For some sex offenses, the definition of the offense includes the phrase "sexual contact," while others contain the phrase "sexual conduct.."  While many Penal Law definitions are found in Article 10 of the Penal Law, some are found in the articles addressing the particular offenses.  "Sexual contact" and "sexual conduct" are defined in the definitions section of Article 130.  Some sex offense crimes contain neither phrase but the definition of the offense sets forth the elements.   

Sexual Abuse in the First Degree involves "sexual contact."  Sexual contact requires the contact be for the "purpose of gratifying sexual desire of either party." (PL 130.00(3).  The definition is more extensive.  But rape, sodomy and course of sexual conduct, for example, do not require that purpose. So it is possible to commit the lesser without committing the greater offense.  And if that can happen, the charge is not a lesser.  For cases addressing this specific issue in sex offenses, see People v. Wheeler  67 NY2d 960 and  People v. Baker 123 AD3d 1378 (Third Dept. 20146).

Thursday, October 4, 2018

by Jill Paperno

Author of "Representing the Accused: A Practical Guide to Criminal Defense"

A judge must respond to a jury's questions in a way that meaningfully answers the question and does not add new principles of law to those they originally received.  (Some practice tips at the end.) 
In People v. Wood, 163 AD3d 14852018 Slip Op 05422, (4th Dept July 25, 2018),  the Fourth Department considered whether the trial court adequately responded to the jury's questions about intent and knowledge.  Defendant was accused of brandishing a weapon in a restaurant.  He was arrested shortly after the incident and found in possession of a loaded firearm.  (Interestingly, and unfortunately, defendant's testimony and defense seem to have made out all of the elements of one of the charges in the indictment - CPW2 possession of a loaded firearm under Penal Law 265.03[3] But I digress...). 

During deliberations the jury sent the court a note requesting clarification of the terms "intent" and "unlawfully," and asked whether they applied to when the defendant emerged from the vehicle, when he pulled the weapon from his pants, or at any time he was in possession of the gun.  They also asked for a readback about the interaction in the restaurant.  The prosecutor then asked, for the first time, for an instruction on the presumption (or as Bradley would remind us, permissive inference) that one in unlawful possession of a loaded firearm is presumed to intend to use it unlawfully against another.  The defense objected, noting that the prosecutor had never previously requested the instruction, the Court should not be instructing on principles of law for the first time during deliberations, and that counsel did not have an opportunity to respond to the new instruction.  The Court overruled the objections and read the additional instruction.  Within two minutes the jury had a verdict. 

The Appellate Division in Wood wrote: 
The Criminal Procedure Law allows the jury to ask the court to clarify an instruction "[a]t any time during its deliberation" (CPL 310.30). Upon receiving such a request, the court must " perform the delicate operation of fashioning a response which meaningfully answer[s] the jury's inquiry while at the same time working no prejudice to the defendant' " (People v Brewer, 118 AD3d 1409, 1413 [4th Dept 2014], lv denied 24 NY3d 1082 [2014]; see People v Miller, 288 AD2d 698, 700 [3d Dept 2001]). "[T]he court has significant discretion in determining the proper scope and nature of the response" (People v Taylor, 26 NY3d 217, 224 [2015]). In determining whether the court's response constituted an abuse of discretion, " [t]he factors to be evaluated are the form of the jury's question, which may have to be clarified before it can be answered, the particular issue of which inquiry is made, the [information] actually given and the presence or absence of prejudice to the defendant' " (id., quoting People v Malloy, 55 NY2d 296, 302 [1982], cert denied 459 US 847 [1982]).We conclude that the court failed in its duty to fashion a response that meaningfully answered the jury's question and to avoid prejudicing defendant. The jury notes demonstrate that the jury had thoughtful questions about intent and was carefully weighing the conflicting testimony of the witnesses to determine whether and when defendant in fact formed the intent to use the gun unlawfully against another. The court, however, instructed the jury that defendant's possession of the gun was presumptive evidence of intent to use it unlawfully, and that the jury may not need or want to consider additional evidence in light of that presumption. That answer was not responsive to either note. Moreover, the court's response prejudiced defendant by introducing new principles of law after summations, when defense counsel no longer had the opportunity to argue that, despite the presumption, the evidence established that defendant lacked the requisite intent (see Brewer, 118 AD3d at 1413; see generally People v Sierra, 231 AD2d 907, 908 [4th Dept 1996]).

So there are  several takeaways from this case.  First, don't have your client admit to all of the elements of one of the charges in an indictment if the charges are all at the same level of severity and relate to the same incident.  It may be a defense to admit to lower level charges, or charges relating to one non-transactional incident, but to admit to a C violent while fighting another subdivision of the charge may lead you to win the battle but lose the war, as happened here.
Second, if the jury asks a question, make sure you have the opportunity to read the note or have the entire note read to you.  Ask the Court to mark it and make it part of the record if the Court is not doing that.  Consider whether the Court's proposed response adequately addresses the question.  If it does not, object.  If the question involves readback, make sure the cross is included, and that all of the readback addressing the topic is provided to the jury - I have had many trials where the Court believed some of the testimony was responsive and was not intending to read the rest, or only asked the stenographer to read part.  Sometimes judges rely entirely on the stenographer's interpretation of what testimony is responsive.  Object if the cross or a part of the readback is left out (unless that part hurts you, in which case perhaps you rely on the Court's recollection and selection).  If there are new instructions or legal principles included in the Court's response, and they are harmful to your case, object, citing this case, and noting that the defense did not have an opportunity to respond to or address those instructions during the trial, and this deprives your client of the rights to due process and a fair trial as protected by the New York State and United States constitutions.  
As an aside - you do not have to assume that the Criminal Jury Instructions must be read verbatim.  They are suggestions, and you should consider offering your own instructions when your case warrants it.  If you do, and the Court rejects your  instruction, have it marked and made part of the record so it can be reviewed on appeal.  Or at least make sure your verbal request is on the record.
Jury instructions are an important part of the case, and much as we would like to take that time for a well deserved nap, we have to be vigilant and precise as we listen, object, consider whether proposed responses are accurate and complete, and make additional requests.  

Monday, October 1, 2018

by Brian Shiffrin

    It is important understand the differences between actual bias and implied bias of prospective jurors. CPL§ 270(1)(b), deals with a prospective juror  who has evinced an actual bias, defined as  “a state of mind that is likely to preclude him from rendering an impartial verdict based upon the evidence adduced at trial.” If a juror’s statements during voir dire raise a doubt about his impartiality, such as statements that he has a pre-formed opinion about the case, that juror cannot be permitted to sit unless he states unequivocally that he can be fair and decide the case solely on the evidence adduced at trial (People v Johnson, 17 NY3d 752, 753 [2011]; People v Chambers, 97 NY2d 417, 419 [2002]; People v Arnold, 96 NY2d 358, 362-363 [2001]; People v Johnson, 94 NY2d 600, 614 [2000]). Thus, actual bias can be cured by an expurgatory oath.
Another subdivision, CPL § 270(1)(c), permits challenges for cause stemming from the implied bias of a prospective juror’s relationship with either party, witness, or counsel.
Specifically, this subdivision, very broadly permits challenges for cause where a prospective juror
is related within the sixth degree by consanguinity or affinity to the defendant, or to the person allegedly injured by the crime charged, or to a prospective witness at the trial, or to counsel for the people or for the defendant;. . . .  that he bears some other relationship to any such person of such nature that it is likely to preclude him from rendering an impartial verdict
(CPL§ 270.20[1][c].)

As quoted above, CPL§ 270.20(1)(c) is not limited to familial relationships. The Court of Appeals has explained that this subdivision was written to provide for wider listing of relationships subject to challenge for cause than the Code of Criminal Procedure had previously allowed which is why it included the catchall last sentence,  not in the Code,  authorizing for cause challenges to a prospective juror who bears some other relationship to any such person of such nature that it is likely to preclude him from rendering an impartial verdict (People v Culhane, 33 NY2d 90, 104-05, n2 [1973]).  These relationships have been held to include a wide variety of professional and personal relationships (see, e.g., People v Rentz, 67 NY2d 829, 830–831 [1986] [juror with professional relationship with two witnesses and personal one with one witness should have been disqualified]; People v. Branch, 46 N.Y.2d at 650–651 [looked at “direct contact” with the District Attorney and that juror had “worked directly” with trial prosecutor, in addition to having a personal relationship with trial prosecutor]; People v. Littebrant, 55 AD3d 1151, 1154, [2008] [juror with professional and long-term personal relationship with key defense witness properly excused for cause]; People v Bedard, 132 AD3d 1070 [3d Dept 2015] [friendship with District Attorney required granting of a for cause challenge]; People v. Clark, 125 A.D.2d 868 [friendship with District Attorney required granting of for cause challenge]; People v Meyer, 78 AD2d 662, 664 [2d Dept 1980] [limited social acquaintance and a business relationship with the prosecution witness created implied bias requiring exclusion]; People v Wlasiuk, 90 AD3d 1405, 1412 [3d Dept 2011] [juror failed to disclosprofessional relationship as coworker to victim]). 
Critically, in contrast to challenges for cause based on actual bias pursuant to CPL § 270(1)(b), the implied bias of a prospective juror’s relationship with either a party, witness, or counsel, cannot be cured with an expurgatory oath (People v Furey, 18 NY3d 284, 287-88 [2011]; People v Branch, 46 NY2d 645, 649-52 [1979] [“the risk of prejudice arising out of the close relationship ... [is] so great that recital of an oath of impartiality could not convincingly dispel the taint”]).
Thus, the Court of Appeals has explained that a challenge for cause for a person who has a relationship covered by  CPL § 270(1)(c)
requires automatic exclusion from jury service regardless of whether the prospective juror declares that the relationship will not affect her ability to be fair and impartial (see e.g. People v Branch, 46 NY2d 645, 650 [1979]; People v Rentz, 67 NY2d 829, 831 [1986]). And such bias . . .creates the perception that the accused might not receive a fair trial before an impartial finder of fact.  For this reason, we have advised trial courts to exercise caution in these situations by leaning toward “disqualifying a prospective juror of dubious impartiality” (People v Branch, 46 NY2d 645, 651.)
(People v Furey, 18 NY3d 284, 287-88 [2011].)
This past week, citing and applying Furey, the Fourth Department, in People v Farley (2018 NY Slip Op 06380 [4th Dept]), reversed a conviction where the the juror acknowledged that the medical witness was the surgeon who save her life, despite the juror's insistence that she could be fair. Remember, reversal only occurs if  the defendant exercised a peremptory challenged and and exhausted his peremptory challenges (see CPL 270.20 [2]).

Thursday, September 20, 2018

by Jill Paperno,

There is a body of law that bars discriminatory use of challenges to jurors based on a Supreme Court decision, Batson v. Kentucky 476 U.S. 79.  When you are challenging a prosecutor's discriminatory  use of jury challenges, it is called "making a Batson challenge."   

In People v. Herrod, the Fourth Department reminds us of the process and standards to be applied in Batson challenges.  One way prosecutors often oppose our Batsonchallenges is by claiming that there has been no "pattern" of discrimination established during our challenge.  But that is not the standard, and it's really important that we not allow the prosecutor or court to rely on that erroneous belief in denying our challenges.   In People v. Herrod , 2018 NY Slip Op 05110 [163  AD3d 1462 [4th Dept July 6, 2018],  the Fourth Department stated, 

Defendant contends that County Court misstated his burden under the first step of the three-step Batson test. We agree. In order for the moving party to satisfy its burden at step one, it must " show[ ] that the facts and circumstances of the voir dire raise an inference that the other party excused one or more jurors for an impermissible reason'" (People v Baxter, 108 AD3d 1158, 1159, 969 N.Y.S.2d 678 [4th Dept 2013], quoting People v Smocum, 99 NY2d 418, 421, 786 N.E.2d 1275, 757 N.Y.S.2d 239 [2003]). "A defendant need not show [either] a pattern of discrimination'" (People v Anthony, 152 AD3d 1048, 1050, 61 N.Y.S.3d 151 [3d Dept 2017]) or, as the court stated here, "a systematic approach by the prosecution." (Emphasis added.)  Rather, a defendant may satisfy his or her burden under the first step by demonstrating that "members of the cognizable group were excluded while others with the same relevant characteristics were not" or that the People excluded members of the cognizable group "who, because of their background and experience, might otherwise be expected to be favorably disposed to the prosecution" (People v Childress, 81 NY2d 263, 267, 614 N.E.2d 709, 598 N.Y.S.2d 146 [1993]).

We conclude that defendant met his burden under step one by establishing that there is a basis in the record to infer that the People exercised the peremptory challenge in a discriminatory manner. Here, defense counsel explained to the court that the relevant prospective juror was the first African-American male "that's been available without a [for]-cause" challenge and that the prospective juror provided answers during voir dire that were favorable to the prosecution, i.e., that the prospective juror had a number of family members in law enforcement, had a college degree and had at one time been  robbed. Defense counsel thus implied that he could not ascertain from the prospective juror's answers a reason for the peremptory challenge other than racial bias. The court did not provide defense counsel with any further opportunity to develop that argument and, instead, interrupted defense counsel and concluded that a pattern of discrimination had not been established.
Inasmuch as there is a basis in the record to infer that the People exercised the peremptory challenge in a discriminatory manner, we conclude that "the burden shifted to the People to articulate a non-discriminatory reason for striking the juror, and the court then should have determined whether the proffered reason was pretextual" (People v Davis, 153 AD3d 1631, 1632, 62 N.Y.S.3d 641 [4th Dept 2017]; see generally People v James, 99 NY2d 264, 270-271, 784 N.E.2d 1152, 755 N.Y.S.2d 43 [2002]). We therefore hold the case, reserve decision, and remit the matter to County Court for that purpose (see Davis, 153 AD3d at 1632).

Monday, August 27, 2018

by Jill Paperno,

When a jury has a substantive note in the case (not simply asking for a bathroom or cigarette break, for example), it is not enough for a judge to summarize its contents.  This is one of the few areas in which appellate courts scrutinize adherence to the letter of the law, in this case CPL 310.30 (Jury deliberation; request for information), and the cases interpreting it (specifically, People v. O'Rama 78 NY2d 270).  Failure to provide this information to defense counsel constitutes a "mode of proceedings error," and can lead to reversal. In People v. Parker and People v. Morrison, both decided on June 28, 2018, the Court of Appeals reaffirmed its position on the need to strictly adhere to jury note procedures. 

In People v. Parker2018 NY Slip Op 04776, the Court reiterated what is required by the trial court in providing meaningful notice of the contents of the note, and a meaningful response to the jury. The Court further acknowledged the purpose of notice to the counsel is to provide counsel with the opportunity to "participate in the formation of a response" to the jury's question.  Justice Rivera, writing for the Court, noted that the record did not establish that all three jury notes were shared with counsel, and stated:   

CPL 310.30 requires that, in response to a jury request for additional information or instruction "with respect to any matter pertinent to the jury's consideration of the case," the trial court "must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant[,] must give such requested information or instruction as the court deems proper." In People v Mack, we reaffirmed that CPL 310.30 "imposes two responsibilities on trial courts upon receipt of a substantive note from a deliberating jury: the court must provide counsel with meaningful notice of the content of the note, and the  court must provide a meaningful response to the jury" (27 NY3d 534, 536  [2016], citing O'Rama, 78 NY2d at 276-277). "[M]eaningful notice means notice of the actual specific content of the jurors' request'" (id. at 538, quoting O'Rama, 78 NY2d at 277). The purpose of this requirement is to give counsel an opportunity to participate in the formation of a response to the jury's substantive inquiry (see O'Rama, 78 NY2d at 276-277). As we have repeatedly instructed, such "departures from the O'Rama procedures are not subject to preservation rules" (People v Walston, 23 NY3d 986, 989, 991 N.Y.S.2d 24, 14 N.E.3d 377 [2014] [citations omitted]). Rather, "when the trial court fails to provide counsel with meaningful notice of a substantive jury note, a mode of proceedings error has occurred and reversal is required" (Mack, 27 NY3d at 538).
People v Parker, 2018 N.Y. LEXIS 1592, *13-14 

 In People v. Morrison, 2018 NY Slip Op 04777, decided 6/28/18, the Court of Appeals reversed defendant's conviction because the entire content of the note was not shared with counsel, stating, 

The trial court's failure to provide counsel with meaningful notice of a substantive jury note is a mode of proceedings error that requires reversal (see People v Mack, 27 NY3d 534, 538  [2016], rearg denied 28 N.Y.3d 944 [2016]; People v Nealon, 26 NY3d 152, 156-157 [2015]). "[M]eaningful notice means notice of the actual specific content of the jurors' request'" (Mack, 27 NY3d at 538, quoting People v O'Rama, 78 NY2d 270, 277  [1991]). Although the record demonstrates that "defense counsel was made aware of the existence of the note, there is no indication that the entire contents of the note were shared with counsel" (People v Walston, 23 NY3d 986, 990 [2014]). We therefore reject the People's argument that defense counsel's awareness of the existence and the "gist" of the note satisfied the court's meaningful notice obligation, or that preservation was required. "Where the record fails to show that defense counsel was apprised of the specific, substantive contents of the note—as it is in this case—preservation is not required" (id.).
Moreover, "[w]here a trial transcript does  not show compliance with O'Rama's procedure as required by law, we cannot assume that the omission was remedied at an off-the-record conference that the transcript does not refer to" (id.). In other words, "[i]n the absence of record proof that the trial court complied with its [meaningful notice obligation] under CPL 310.30, a mode of proceedings error occurred requiring reversal" (People v Tabb, 13 NY3d 852, 853  [2009]). We again decline "to disavow our holding in Walston . . . that imposes an affirmative obligation on a trial court to create a record of compliance under CPL 310.30 and O'Rama" (People v Silva, 24 NY3d 294, 300  [2014], rearg denied 24 N.Y.3d 1216 [2015]; see People v Parker, — NY3d — [decided today]).  People v Morrison, 2018 N.Y. LEXIS 1594, *1-2 

Thursday, August 16, 2018


Lawrence L. Kasperek

In USA v. Townsend, 897 F.3d 66 (2d Cir. July 23, 2018)
, the Second Circuit held that NYS Penal Law  Section § 220.31 (fifth-degree criminal sale of a controlled substance) is not a "controlled substance offense" under USSG 4B1.2(b). See United States v. Townsend, 897 F.3d 66 (2d Cir. 2018) (Cabranes, Carney, Vilardo (W.D.N.Y.)) (appeal from Irizarry, C.J., E.D.N.Y.). Yes that's right  --  Judge Vilardo sitting by designation from the WDNY in Buffalo, NY.

The consequences of this decision is that any New York State statute that just uses the term “controlled substance” is not a controlled substances offense for the purposes of the Career Offender Guideline analysis.

How to apply Townsend:

- Any NY state statute that just uses the term “controlled substance” (as opposed to, say "narcotic drug") IS NOT a controlled substance offense. The most common New York State statutes to look for are: 220.31 (criminal sale 5th); 220.06(1) (criminal possession 5th); 220.34(7) and (8) (criminal sale 4th); 220.48 (criminal sale to child); 220.65 (criminal sale by practitioner); 220.77(1) (operating as major trafficker).

- Statutes from other states with overbroad drug schedules also may not qualify, depending on whether or not the statute is divisible, and whether the government has Shepard documents showing the particular substance sold. States that are known to have overbroad schedules include California, Connecticut, Kansas, Michigan, Pennsylvania, and Virginia. However, there may be others. Often, the good law on divisibility and overbreadth appears in immigration cases involving the “controlled substance offense”" ground of removability. If your client has an out-of-state drug prior, you will want to take a close look at overbreadth.

- For now, the higher-degree New York offenses, especially 220.39(1) (criminal sale 3rd, narcotic drug) still count.

Importantly, Townsend's logic may also apply to 2K2,.1 referencing "controlled substance offenses" or any other Guideline application.

Credit for the above belongs to Daniel Habib, a Federal Public Defender in the Eastern and Southern Districts of NY for bring the challenge and  Amy Baron-Evans, National Sentencing Resource Counsel  for analysis.

Sunday, August 12, 2018

by Jill Paperno,

Author of "Representing the Accused: A Practical Guide to Criminal Defense"

As you know, there are different ways a client may be charged with unlawful possession of drugs or a weapon or other contraband.  They may be charged with actual possession,  when the item is found on their person.  Or they may be charged with constructive possession, when it is alleged they have dominion and control over the location in which the item was found.  Under some circumstances (and please check the statutes for the specific circumstances in each case) they may be accused of possession based on a statutory presumption.   

All too often, our clients are accused of possessing items in locations where they are spending a short time or passing through.  When a client is accused of possession under those circumstances, we should challenge the claim by moving against the accusatory instrument, requesting greater specification of the dominion and control in the request for bill of particulars, seeking suppression through hearings, and focusing on that at trial.  (If a defendant is accused based solely on a presumption, the defendant has automatic standing to challenge an unlawful search of a location.  If they are accused based on the presumption and constructive possession, you must ask in your request for bill of particulars what the factual basis is for a conclusion that the defendant exercised dominion and control.  Argue that the prosecution is merely making a constructive claim to avoid the automatic standing.  (Often they are.)   

When a defendant is charged with constructive possession, they must have greater involvement with the location than merely being present.  In  People v Williams, 2018 N.Y. App. Div. LEXIS 4221 decided June 8th, the Fourth Department reversed defendant's conviction, concluding that the defendant's connection with the apartment where she was arrested, and where it was claimed she had dominion and control, was too limited.  The Court stated, 

Where, as here, there is no evidence that the defendant actually possessed the controlled substance, the People are required to establish that the defendant "exercised dominion or control' over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized" (People v Manini, 79 NY2d 561, 573 [1992]; see Penal Law § 10.00 [8]; People v Russaw, 114 AD3d 1261, 1261-1262 [4th Dept 2014], lv denied 22 NY3d 1202 [2014]). The People may establish constructive possession by circumstantial evidence (see People v Torres, 68 NY2d 677, 678-679 [1986]; People v Boyd, 145 AD3d 1481, 1481-1482,  [4th Dept 2016], lv denied 29 NY3d 947,  [2017]). It is well established, however, that a defendant's mere presence in the area where drugs are discovered is insufficient to establish constructive possession (see Boyd, 145 AD3d at 1482People v Knightner, 11 AD3d 1002, 1004, 782 N.Y.S.2d 333 [4th Dept 2004], lv denied 4 NY3d 745, 824 N.E.2d 59, 790 N.Y.S.2d 658 [2004]).
People v Williams, 2018 N.Y. App. Div. LEXIS 4221, 

In this case, the defendant was present in the apartment when the search warrant was executed, but there was no evidence she was a frequent occupant or resident of the premises.  The investigator also testified records established the defendant lived there (huh?) but there was no evidence as to how the information was made part of those records, and that through the investigator's surveillance over hundreds of occasions, the defendant was only seen there twice. He testified "typical women's clothing" was found in the apartment but provided no details, and photos did not appear to show such clothing except three pairs of shoes that could be the defendant's, in contrast to the detailed description he gave of men's clothing also found there.

The Court concluded: 

Inasmuch as there was no evidence, other than her presence, that specifically connected defendant to the apartment where the contraband was found, "the People failed to prove that [she] exercised dominion and control over the contraband, and therefore failed to prove the possession element of the counts as charged" (People v Brown, 133 AD3d 772, 773 [2d Dept 2015], lv denied 26 NY3d 1143 [2016]; see generally People v Gautreaux-Perez, 31 AD3d 1209, 1210 [4th Dept 2006]).
People v Williams, 2018 N.Y. App. Div. LEXIS 4221, *3-4