High Court Reverses Conviction, Orders New Trial
Omar Smalling was charged with criminal possession of a weapon and related counts. The People’s theory at trial was that appellant had had actual, physical possession of the gun, and the court assured the parties, before summations, that it would not deliver a constructive possession charge. When a jury note asked for clarification of “dominion and control,” the court told the parties only that it was going to “use the definition in the charge” and “its discretion” in responding, but the court proceeded to read constructive possession and acting-in-concert charges to the jury.
The Court of Appeals reversed appellant's conviction. Although the Court disagreed with appellant’s argument that the evidence did not support a constructive possession charge, it agreed that it was improper for the lower court to have delivered the charge after having previously told the parties that it would not do so.
Kathleen Whooley briefed and argued the case in the Appellate Division and sought leave to appeal to the Court of Appeals, and Jenin Younes briefed and argued the case in the Court of Appeals.