What is the test for "constructive possession" of a drug?

A defendant may "possess" contraband if it is in his actual physical possession or if it is within his dominion and control and available for unlawful use if desired. See, e.g., People v. Robertson, 48 N.Y.2d 993, 425 N.Y.S.2d 545, 401 N.E.2d 903 (1980). Where a defendant is alleged to be holding the contraband, a finding of "possession" can readily be made. But where a defendant is not observed to be in actual physical possession, a finding of "constructive possession" must depend on an analysis of the surrounding facts and circumstances. Similarly, where defendants are jointly charged with possession the facts are critical, since it is unlikely that all defendants were simultaneously holding the contraband.

Further, with respect to cocaine, an inference of possession may, as a matter of law, arise from its presence together with the defendant or defendants in an automobile or in a room. See, P.L. 220.25(1), (2); People v. Leyva, 38 N.Y.2d 160, 379 N.Y.S.2d 30, 341 N.E.2d 546 (1975). When the charge of possession is based on this theory, the facts supporting the statutory inference must be alleged.