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Statutory analysis leads to reversal of child pornography possession counts

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Behind the glamor of courtroom drama and action is painstaking, dogged, and yearslong practice, preparation, and study if a lawyer wants to win. No matter how much a not guilty verdict is a rush, I will take my victories any way I can, including through the less glamorous approach of obtaining a pretrial dismissal through meticulous review of the applicable statutes and caselaw as they apply to the criminal allegations against my client.

It appears that statutory language spelled the difference between James Kent’s winning or losing on his convicted counts for child pornography possession from viewing child pornography images online. Although he did not win on appeal for all his convicted counts, he obtained an appellate win that boils down to the following:

The question presented for our review is whether the evidence proffered at defendant’s trial was legally sufficient to support his convictions for Promoting a Sexual Performance by aChild (Penal Law § 263.15) and Possessing a Sexual Performance by a Child (Penal Law § 263.16). We must consider, among other issues, the evidentiary significance of "cache files," or temporary internet files automatically created and stored on a defendant’s hard drive, and the defendant’s awareness of the presence of such files. We conclude that where the evidence fails to show that defendant had such awareness, the People have not met their burden of demonstrating defendant’s knowing procurement or possession of those files. We further conclude that merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our Penal Law.

New York v. Kent (May 8, 2012).