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Wednesday, May 9, 2012

N.Y. high court: Just viewing child porn not state crime

"ALBANY, N.Y. — New York’s top court ruled yesterday that simply viewing child pornography online does not constitute either criminal possession or procurement under state penal law.

The Court of Appeals dismissed two counts against JDK, who was a professor of public administration at Marist College, where a virus scan of his computer in 2007 found pornographic images. He was convicted of two counts of procuring and 134 counts of possessing a sexual performance by a child. He was sentenced to one to three years in state prison and began his sentence in 2009.

The Court of Appeals agreed that K, now 65, was properly convicted because he had downloaded, saved and deleted 132 images. But the majority said some images in his computer cache, temporary files automatically stored from sites he had viewed, cannot be held against him under state law. The court sent K’s case down to a lower court for resentencing.

The five judges said it was still a federal crime knowingly to access with intent to view any book, magazine, periodical, film, videotape, computer disk or other material containing an image of child pornography. Under state law, such browsing can be used to show a guilty intent, that access to an illicit image or site was not a mistake, they said.

“Nonetheless, that such images were simply viewed, and that defendant had the theoretical capacity to exercise control over them during the time they were resident on the screen, is not enough to constitute their procurement or possession,” Judge Carmen Beauchamp Ciparick wrote. “Rather, some affirmative action is required (printing, saving, downloading, etc.) to show that defendant in fact exercised dominion and control over the images that were on his screen.”

Chief Judge Jonathan Lippman and Judges Susan Read, Robert Smith and Theodore Jones Jr. agreed."

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