Knowing Where a Gun is Kept Does Not Establish Possession

The Appellate Division, Fourth Department, in People v Carmichael (2009 NY Slip Op 09788 [4th Dept 12/30/09]), held that the evidence is legally insufficient to support a conviction of criminal possession of a weapon in the third degree where, upon his arrest, the defendant told the police that

the gun was in a safe located on a closet shelf in his mother's bedroom and that he lived in his mother's house. Defendant gave the police an incorrect combination to the safe, and the police were able to open it only after defendant's mother retrieved the correct combination from a slip of paper in her purse.

On these facts, the Court held that that there is no valid line of reasoning and permissible inferences to support the conclusion that defendant exercised dominion and control over the safe, the bedroom in which the safe was located, or his mother, and

thus the evidence is legally insufficient to establish that defendant was in constructive possession of the firearm on the date of his arrest (see People v Manini, 79 NY2d 561, 573-574; People v Edwards, 39 AD3d 1078, 1079; cf. People v Ortiz, 61 AD3d 779, lv denied 13 NY3d 748...