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The New York Court of Appeals Rules that Viewing Child Pornography in Certain Circumstances is not a Crime

Posted By Joseph Sullivan || 10-May-2012

The New York Court of Appeals drew a distinction between incidental viewing of child pornography and the active possession or procurement of the images. In the case of People of the State of New York v. James Kent , a College professor was convicted of 143 counts of possession and procurement of child pornography. He was ultimately sentenced to 1-3 years in upstate prison. However, the New York Court of Appeals reversed the conviction on 2 specific counts because the images underlying those counts were stored in the defendant's computer as a "cache," which allows that page to load more quickly on future visits. Regarding these images, he had only viewed them and was not aware of his computer's cache function.

The Court held that to "possess" cached images, "the defendant's conduct must exceed mere viewing to encompass more affirmative acts of control such as printing, downloading or saving," Notably, Prosecutors must show, "at a minimum, that the defendant was aware of the presence of those items in the cache." The Court went on to say that "[a] defendant cannot knowingly acquire or possess that which he or she does not know exists."

Child pornography crimes are actively investigated by New York State and Federal Authorities. The New York Criminal Attorneys at Sullivan & Brill, LLP have experience in representing clients charged with these crimes.