Child Pornography Legal To View Online In New York – Court Rules That Looking At Porn Doesn’t Mean Possession

In The People v. James D. Kent, 2012 NY Slip Op 3572, the Court of Appeals of New York reversed Defendant Kent’s conviction for possession of child pornography as to counts relating to pornographic images he did not download or otherwise manipulate or control.

On May 26, 2005, defendant James D. Kent, a professor of public administration at a Dutchess County college, received a new office computer through a campus-wide technology upgrade. The files stored on the hard drive of the old computer were transferred to the new computer. On April 5, 2007, a student employee of the college’s information technology (IT) department went to defendant’s office in response to his complaints that his computer was malfunctioning. While running a virus scan of the computer’s hard drive, the employee discovered a work folder containing numerous “.jpg” or picture files, displayed as “thumbnails,” of scantily clad, prepubescent girls in provocative poses. When the virus scan failed to correct the computer’s unresponsiveness, the employee removed defendant’s hard drive and took it back to the IT office, where supervisors learned of the images. College administrators informed defendant that these images had been found on his computer, but defendant denied any knowledge of them.

Approximately two weeks later, the college submitted defendant’s hard drive to the Town of Poughkeepsie Police Department with a “Consent to Search” form signed by a college administrator. Thereafter, an investigator in the computer forensic lab of the New York State Police conducted a forensic analysis of defendant’s hard drive and found a variety of pornographic images and videos featuring children. But while many images/videos had been purposefully downloaded by defendant, others had been simply viewed and automatically “cached”, or stored to his hard drive with no action on his part.

After a bench trial, defendant was convicted of promoting a sexual performance by a child (Penal Law § 263.15) and possessing a sexual performance by a child (Penal Law § 263.16). He was sentenced to concurrent indeterminate prison terms of one to three years. He appealed; the Appellate Division of the Supreme Court (New York) affirmed. He sought further review.

The Court of Appeals of New York found that defendant was properly convicted of promotion and possession of a video and other images of child pornography recovered from his computer where the evidence established that he had downloaded and/or saved the video and the images prior to deleting them. However, as to images that were automatically cached, the Court ruled differently. It held that evidence of the existence of cached images of child pornography on a defendant’s computer, without more, was insufficient to prove that the defendant procured or possessed them. As there was no evidence that defendant downloaded, saved, printed, or otherwise manipulated or controlled a Web page containing images of child pornography while it was on his screen, evidence that he had accessed a given child porn site was insufficient to convict him of promoting or possessing a sexual performance by a child. Defendant’s conviction of promotion and possession was reversed as to the counts relating to images he had not downloaded or otherwise manipulated or controlled.

All persons charged with crimes are entitled to the protections afforded by the United States Constitution. An experienced criminal defense attorney helps to ensure that a defendant’s rights are protected before, during and after a trial. If you have been charged with or convicted of a criminal offense, you should consult with a criminal defense attorney immediately. For a confidential consultation, contact the Law Offices of Marc Neff at (215) 563-9800 or via email at marc@nefflawoffices.com.