New York State Appeals Court Rules Viewing Child Pornography Is Not Possessing It – People v. Kent

May 14, 2012 by David S. Seltzer

A bit more than a year ago, I wrote here as a cyber crime criminal defense attorney about an interesting appeals court case in Oregon. That state’s Supreme Court ultimately decided that merely viewing child pornography online is not a state crime; the viewer must save, print or pay for the file to be convicted of possessing it within the meaning of the law. This is true even when the computer automatically saves the files to the cache of the web browser, which keeps a copy of recently viewed material. That ruling stirred up controversy in Oregon, of course, where legislators have at least attempted to pass a bill criminalizing viewing the pornography. So I was extremely interested to see a similar ruling out of the New York State Court of Appeals in People v. Kent.

James D. Kent was a professor at Marist College in Poughkeepsie, N.Y., when he brought his computer in to the college’s tech support department for help with malfunctions. A student employee scanning for viruses found a folder full of sexually provocative pictures of underage girls. Kent told college administrators he didn’t know about the images, but the college turned over the hard drive to local police, who found even more sexually explicit child pornography in a separate folder; in the web browser’s cache; and in the “trash” space waiting to be overwritten. Kent was ultimately convicted of 134 counts of child pornography possession and two counts of promoting a sexual performance by a child, for procuring a website and a video. He was sentenced to one to three years in prison.

Kent’s appeal was first rejected by the trial court’s appellate division, which ruled in part that files stored in a cache are not sufficient by themselves to prove knowing possession or procurement. However, that court found the other circumstances sufficient to prove that Kent’s procurement was knowing.

He appealed again and had more luck with the New York State Court of Appeals, which reversed the convictions for certain files found in the computer’s cache. New York made child pornography promotion illegal in 1977, before the Internet changed how this material is usually distributed. That law makes it a crime to knowingly acquire child pornography for any purpose, but Kent argued that accessing and displaying the images does not meet the statute’s definition of procurement. If the defendant doesn’t know the files are being cached, the court wrote, he or she cannot knowingly acquire or possess them within the meaning of the law. In so ruling, the appeals court followed federal law and the laws of some states, which have held that to be convicted for cached images, defendants must be provably aware that the images would be cached. Viewing is also illegal under federal law, the court noted, but not under New York law. Thus, while it found Kent’s possession charges valid, it reversed as to the procurement charges and ruled that prosecutors must prove defendants know of the files in the cache to convict for possession.

As a child pornography criminal defense lawyer, I’m pleased to see this ruling. As with the Oregon case, this one appears to turn on the wording of the state law, which takes into account only possession, not transient viewing online. This is distinct from federal law and the laws of many other states, including Florida, where courts have expressly found that files in a cache are sufficient to support a possession charge. This split may be resolved by state legislators simply changing the law to permit a conviction for viewing, but as a child pornography possession defense attorney, I’d also be interested in seeing it resolved in the U.S. Supreme Court, if appropriate. Prosecutors undoubtedly hate the idea that defendants can go free on what they see as a technicality, but as New York and Oregon have recognized, the law does not permit convictions for things that were never actually criminalized.

If you or someone you love is facing criminal charges for possession of child pornography or another serious crime involving technology or the Internet, you should call Seltzer Law, P.A. Our lead attorney, David Seltzer, is an experienced former cyber crime prosecutor for the Miami-Dade prosecutor’s office and puts that experience to work for defendants across the U.S. For a free, confidential consultation, call us toll-free at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message online.

Similar blog posts:

Oregon High Court Rules Viewing Child Pornography Online Is Not Possessing It

Eleventh Circuit Rules Use of File Sharing Software Does Not Qualify Alone for Sentence Enhancement – U.S. v. Vadnais

Eleventh Circuit Lowers Sentence for Defendant Caught Sending Child Porn to Unidentified Person – U.S. v. Fulford