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Court considered whether evidence was sufficient to support a possesion of child pornography conviction. People v. Kent, 2012 N.Y. Slip Op. 3572 (N.Y. 2012)


Promoting and possessing sexual performances by a child in New York is a sex crime involving to the production, distribution, or possession of material depicting sexual conduct involving minors. The statute governing this offense is found in Article 263 of the New York Penal Law.

Under this law, promoting a sexual performance by a child occurs when a person knowingly produces, directs, or promotes any performance that includes sexual conduct by a child under the age of seventeen. This includes activities such as filming, photographing, or otherwise recording minors engaged in sexual acts or simulated sexual acts (Penal Law § 263.15).

Possessing sexual performances by a child involves knowingly possessing or accessing any material, such as photographs, videos, or digital files, that depict sexual conduct by a child under the age of sixteen. This offense encompasses both physical possession, such as having explicit images stored on a device, and digital possession, such as downloading or accessing illegal material online (Penal Law § 263.16).

People v. Kent involves the convictions of James D. Kent for promoting and possessing sexual performances by a child. Central to the appeal is whether the evidence presented at trial sufficiently supported these convictions, particularly regarding the significance of “cache files” found on Kent’s computer and his awareness of their presence.

Background Facts
James D. Kent, a college professor, received a new office computer in May 2005, during a campus-wide technology upgrade. Subsequently, on April 5, 2007, an IT employee discovered suspicious image files on Kent’s computer while conducting a virus scan. College administrators confronted Kent about the images, which depicted scantily clad, prepubescent girls, but Kent denied any knowledge of them. The college then handed over Kent’s hard drive to the Town of Poughkeepsie Police Department for further investigation.

An investigator from the New York State Police conducted a forensic analysis of Kent’s hard drive and uncovered various incriminating materials. These included cache files containing images from child pornography websites, saved images of underage girls in suggestive poses, and explicit messages referencing possession of pornographic materials. Kent was subsequently indicted on multiple counts of promoting and possessing sexual performances by a child.

Whether the evidence presented at trial was legally sufficient to support Kent’s convictions for promoting and possessing sexual performances by a child. Specifically, the court must determine the evidentiary significance of the cache files found on Kent’s computer and whether Kent’s awareness of these files is relevant to the charges against him.

The court found that the evidence failed to establish that Kent had knowledge of the cache files containing child pornography on his computer. As a result, the court concluded that the prosecution did not meet its burden of demonstrating Kent’s knowing procurement or possession of these files. Additionally, the court held that merely viewing web images of child pornography, without other proof, does not constitute possession or procurement under the Penal Law.

The court’s decision hinged on the distinction between inadvertent acquisition or possession of offensive material and knowing or intentional procurement and possession. While the cache files indicated past procurement of the images, the prosecution failed to prove that Kent knowingly accessed or possessed these files. Moreover, the court emphasized that the mere existence of an image in a cache file is not sufficient to establish knowing procurement or possession of child pornography.

Regarding Kent’s awareness of the cache files, the court found no evidence to suggest that he was aware of their presence or the contents therein. Despite the incriminating materials found on his computer, there was no indication that Kent intentionally sought out or stored child pornography. As such, the court held that the evidence was legally insufficient to support Kent’s convictions for promoting and possessing sexual performances by a child.

The court reversed Kent’s convictions on counts related to the promotion and possession of child pornography found in cache files on his computer. The decision underscores the importance of proving knowing procurement or possession of such materials and highlights the challenges in establishing awareness of cache files containing illicit content. Ultimately, the case raises important questions about the evidentiary standards for prosecuting offenses related to child pornography in the digital age.

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