ALBANY, May 8 (Reuters) - Viewing child pornography on the
Internet without taking further action such as printing or
saving files does not necessarily constitute possession, NewYork's top court ruled on Tuesday.
The ruling by the Court of Appeals dismissed two of the 143
counts of possession of child pornography for which James Kent,
a former professor at Marist College, was convicted in 2009.
When a Web page is viewed, a copy of the page is stored in a
computer's "cache," which allows that page to load more quickly
on future visits. The court found that while Kent had saved some
of the files in question, he had only viewed others and was not
aware of his computer's cache function.
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," Judge Carmen
Ciparick wrote for the court.
Prosecutors must show, "at a minimum, that the defendant was
aware of the presence of those items in the cache," Ciparick
In 2007, Kent asked information technology staff at Marist
to look at his computer because it was not working properly. A
college employee discovered numerous photos and videos of young
children, some of whom were nude. The school turned the computer
over to police.
A forensic investigator found more than 30,000 additional
files in Kent's computer's cache.
In his defense, Kent said he had used the images as part of
his research into child pornography. He further argued that he
had never been in possession of many of the files because they
were not saved to his computer.
Kent was convicted after a non-jury trial of 143 counts of
possession and sentenced to one-to-three years in prison. In
2010, the Appellate Division, Second Department, affirmed the
conviction, holding that a "cached web page ... is evidence that
the web page was accessed and displayed on the defendant's
The Court of Appeals on Tuesday modified, tossing out two of
the counts because they involved files that Kent never purposely
saved to his computer.
"A defendant cannot knowingly acquire or possess that which
he or she does not know exists," Ciparick wrote, joined by Chief
Judge Jonathan Lippman and Judges Susan Read and Theodore Jones.
Judge Robert Smith concurred in a separate opinion.
Judge Victoria Graffeo concurred in result, but wrote that
the majority opinion was too broad and essentially legalized the
viewing of child pornography in New York. That, she said, goes
against the state legislature's intent to punish consumers in
order to eradicate the market for child pornography.
"The majority's decision ... will, unfortunately, lead to
increased consumption of child pornography by luring new viewers
who were previously dissuaded by the potential for criminal
prosecution," Graffeo, joined by Judge Eugene Pigott, wrote.
The majority noted that, under federal law, it is a crime to
"knowingly access (child pornography) with intent to view,"
while state law includes no comparable language.
Nathan Dershowitz, who represented Kent on appeal, said
Tuesday that the issue is a prime example of the inapplicability
of laws that predate the digital age to cases involving the use
The decision "indicates not that viewing child pornography
is legal, but that the legislature has not dealt with this
outdated language," Dershowitz said.
Kent's case was sent back to Dutchess County Court for
Dutchess County Assistant District Attorney Bridget Steller
did not return a call seeking comment.
The case is the People v. James Kent, New York State Court
of Appeals No. 70.
For the prosecution: Dutchess County Assistant District
Attorney Bridget Steller
For Kent: Nathan Dershowitz
(Reporting by Dan Wiessner)
Follow us on Twitter: @ReutersLegal | Like us on Facebook