People v. Kent: Controversial Court of Appeals Decision Creates Loophole in Child Pornography Laws

By   /   April 15, 2013 


People v. Kent: Controversial Court of Appeals Decision Creates Loophole in Child Pornography Laws

People v. Kent, 910 N.Y.S.2d 78 (2d Dep’t 2010)

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Meaghan E. Howard



On May 8, 2012, the New York Court of Appeals handed down a supremely controversial decision concerning the ability to prosecute for the possession of child pornography.1  In People v. Kent, the State’s high court effectively created a dangerous loophole in the penal law for those who pursue child pornography on the Internet.  The court “modified” the Second Department’s decision,2 in what could be otherwise considered a reversal of two counts (counts 1 and 142) of the defendant’s conviction for promotion and possession of Internet child pornography.3  To the detriment of exploited child victims in this state, the court concluded that the mere viewing of child pornography on a website is not enough to constitute the crime of possession under the meaning of Penal Law section 263.15 and Penal Law Section 263.16, as currently written.4

Penal Law Section 263.15 concerns the promotion of a sexual performance by a child.5  The statute states, “A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he produces, directs or promotes any performance which includes sexual conduct by a child less than seventeen years of age.”6  Similarly, Penal Law Section 263.16 refers to one’s possession of a sexual performance by a child, and expressly states, “A person is guilty of possessing a sexual performance by a child when, knowing the character and content thereof, he knowingly has in his possession or control any performance which includes sexual conduct by a child less than sixteen years of age.”7  These laws were enacted by the legislature to protect the children that are exploited each time pornographic images are viewed by any individual seeking sexual arousal at the immeasurable cost of a child’s innocence.8



In the case at hand, the defendant, James D. Kent, was a professor of Public Administration at a college in Dutchess County, New York.9  The defendant received a new work computer as a result of an upgrade at the college, and all of the files contained on his old hard drive were transferred onto the hard drive of his new computer.10  Approximately two years later, the professor complained of his computer’s performance and a member of the college’s IT Department conducted a scan for viruses.11  This scan led to the discovery of a voluminous folder containing picture files of “very young girls, some scantily dressed in sexually suggestive poses.”12  The hard drive of Professor Kent’s computer was removed and subsequently turned over to police who utilized the services of a special investigator and a “forensic program called EnCase to analyze the data on the hard drive.”13  The investigator determined that the only “active user account” was that of the defendant’s and that there was nothing indicating that another user had logged onto Kent’s computer.14

The EnCase forensic program processes two types of content on the hard drive known as the allocated and unallocated space.15  The forensic investigator testified as to the function of these two types of spaces:

[W]hen the computer user initially creates a file, it is added to the allocated space, which contains files readily accessible and retrievable by the user from the file and operating systems. The unallocated space contains data which cannot be seen or accessed by the user but is accessible by forensic software. When a user deletes a file, it becomes part of the unallocated space…to permanently delete the file, the user must delete it from the recycle bin, sending it to the unallocated space.16

None of the files from the defendant’s unallocated space were transferred to the new computer.17  However, the files from the allocated space were transferred and contained some of the images from the prior computer.18  Additionally, the defendant’s computer had an alternate Internet-browser profile entitled “Jim,” which he used to access child pornography websites.19  The investigator further testified that “[o]ne purpose of creating an alternate profile is to conceal the user’s favorite ‘bookmarks’ or Web addresses that are usually visited.”20

Housed within this alternately created “Jim” profile’s allocated space was a “temporary Internet file known as the Web ‘cache,’ an automatic storage mechanism designed to speed the loading of Internet displays.  When a Web page is displayed on a computer screen, the browser automatically stores a copy of it in the cache.”21  These caches of stored websites comprise the heart of the controversy in this case. Specifically, the Court in dealing with the evidentiary issue of the cache files was posed with the question of whether a defendant must be aware of the presence of these temporary Internet files to knowingly possess child pornography depicted on a webpage image.22  This is crucial issue, because images from a website will only be automatically stored in the cache if they have actually been displayed on the computer at some point.23

The investigation uncovered that the defendant had saved approximately 13,000 images of young girls between the ages of eight and nine who were “undressed or scantily dressed in lingerie or bathing suits, many with their legs spread open and ‘crotches exposed.’ ”24  Furthermore, in a folder entitled “work,” the defendant had saved an additional 17,000 images of young girls.25 Within this “work” folder were subfolders organized by the name of different children whose pictures were contained therein.26  These cached files also contained eleven web pages with captions reading: “Best CP Sites Portal,” “Best Lolita CP Sites,” and “Pedoland.”27 Additionally, eight links to child pornographic videos were located in the defendant’s Real Player history.28

However, amongst the wide array of pornographic images and videos sexualizing children, the defendant was additionally found to have accessed a website entitled “School Backyard” which showed children engaging in sexual intercourse with adults.29  This particular file was found in the allocated space because it had not been deleted and could, therefore, remain accessible to the defendant.30  Notably, within only a few minutes of entering the “School Backyard” site, the defendant accessed and viewed three additional web pages involving images of child bondage; one of these pages was entitled “Pedoland.”31 Finally, the defendant was charged with possession of images found in the unallocated space of his hard drive.32 These images depicted “the lewd exhibition of exposed genitals of female children and included depictions of children penetrate by objects and engaged in sex objects with dogs or adults.”33  These images had all been previously saved to the computer in the allocated space, but at some point were deleted by the defendant.  Therefore, the images transferred to the unallocated space on the hard drive.34



Although the Court of Appeals has affirmed the Second Department with modifications to Counts 1 and 142 of the defendant’s conviction, there is some divergence between the decisions of the two courts that should be discussed.  The main discrepancies lie within the issue of the “defendant’s alleged procurement and possession of the ‘School Backyard’ Web page.”35  The defendant argued with regard to Count 1, the promoting charge, that merely visiting a website “does not constitute procurement of its contents, nor that an act of procurement is committed when a Web page is automatically saved in the cache without his knowledge or the intentional act of downloading or saving it.”36  Moreover, with respect to Count 142, the defendant averred that he could not have knowingly possessed the child pornography because the images were automatically created in the cache and, further, that the People failed to establish the requisite mental state because they could not show that he had knowledge of the automatic cache feature of his computer.37

In adopting a totality of the circumstances approach based upon both the direct and circumstantial evidence at hand, the Appellate Division held that Kent was in fact guilty of both Counts 1 and 142.38  In regard to Count 1 for the promotion of a child sex act, the court determined that the “Web page stored in the cache is evidence of past procurement of the images on that page.  Specifically, the cached Web page from the “School Backyard” site is evidence that the Web page was accessed and displayed on the defendant’s screen.”39  The court further explained its decision that the cached files were sufficient to justify the defendant’s conviction in consideration of the Defendant’s own course of conduct as enumerated by the following: the creation of the alternate “Jim” profile that was set up to view pornography;40 the fact that the defendant accessed other similar sites within minutes of viewing the “School Backyard” site; the eight videos containing child pornography;41 the 30,000 images of the young girls that were “meticulously categorized and saved in subfolders;”42 and the fact that the defendant eventually deleted images into the unallocated space, thereby evidencing his “consciousness of guilt and knowledge of the difference between legal and illegal images.”43  In considering the defendant’s established pattern of behavior, the Second Department held, “The evidence in totality was legally sufficient to establish that the defendant, ‘knowing the character and content’ of the material, knowingly procured the ‘School Backyard’ Web page for his personal consumption.”44

With respect to Count 142 for possession of the images on the “School Backyard” site, the Appellate Division similarly concluded that the defendant knowingly possessed the images located on the webpage.45  The Second Department rightfully determined that:

The defendant knowingly accessed the Web page and displayed it on his computer screen for his personal consumption, establishing his dominion and control over the images.  Whether the defendant understood that his Web browser automatically saved a copy of the image is irrelevant because the cached file itself is not the contraband but is evidence of previous possession of the images. Further, the fact that he did not copy, download, save, or print the images for additional future consumption does not vitiate the proof of his dominion and control over the images for the period of time they were resident on his computer screen.46

The Court of Appeals, however, in its recent decision, reversed the defendant’s convictions as to these two counts,47 thereby creating a loophole in the law wherein pedophiles may now legally view child pornography on the web so long as they do not download, save, or print the images.48

The Court of Appeals reached a converse conclusion in regard to the People’s ability to prove the defendant’s requisite mental state of “knowingly” possessing child pornography.49  The court correctly noted that both crimes of possession and promotion require a “knowing” mental state but incorrectly held that “where no evidence shows defendant was aware of the presence of the cached files, such files cannot underlie a prosecution for promotion or possession.  This is necessarily so because a defendant cannot knowingly acquire or possess that which he or she does not know exists.”50  Notwithstanding the fact that the defendant had accessed these websites and viewed the images of children being subjected to sexual abuse, the Court held that:

[S]uch 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. We do not agree that “purposefully making [child pornography] appear on the computer screen—for however long the defendant elects to view the image—itself constitutes knowing control.51

Instead, the court found that the defendant must engage in some other “affirmative act”52 such as printing, saving, or downloading “to show that defendant in fact exercised dominion and control over the images that were on his screen.”53  The court went on to further explain that its holding is consistent with the legislative intent, in that the conduct of merely viewing child pornography is not criminal under Article 263.54

Most shocking is the court’s declaration that there was inadequate evidence to show that the defendant had in fact “procured” the “School Backyard” webpage because he “did not ‘get possession of [the page] by particular care or effort,’ ”55 as he would have by downloading it.56  It is unclear to this author how the court could reach this conclusion, being that the defendant knowingly searched for a child pornography site, located the site of his choosing, and actively viewed these images for an unknown period of time.  The fact that he did not take the next step of downloading or saving the images should not minimize the defendant’s culpability in actively pursuing the exploitation of children through Internet child pornography.  This holding does nothing more than to ease the efforts of pedophiles who seek out this kind of explicit materials for their own sexual gratification.  Is this really the message that New York State’s highest court should be sending to those individuals with a proclivity for sexualizing children?  One should certainly hope not.



            Although the Court of Appeals does not think that the statutory language of Penal Law Sections 263.15 and 263.16 contemplated the crimes of viewing child pornography on the Internet,57 this author respectfully disagrees.  How could it be said that public policy, let alone the legislature would not intend to “eradicate the social evil of child pornography”58 by criminalizing the viewing of such depraved material on the Internet?  The Second Department and the Honorable Victoria A. Graffeo, who concurred in result only with the Court of Appeals decision, correctly concluded that “the Legislature recognizes that a child is victimized each time an image of the child is knowingly viewed,”59 therefore, placing this conduct “within the reach of our statutory prohibition.”60

Judge Graffeo astutely points out that “[e]ven though personal computers and the Internet were not widely available to the public at that time, the Legislature presciently used broad language that we eventually determined covered digital computer images.”61  Judge Graffeo’s concurring opinion is illustrative of the grave public policy ramifications of the majority’s decision in Kent, explaining:

The result of the majority’s analysis is that the purposeful viewing of child pornography on the Internet is now legal in New York. A person can view hundreds of these images, or watch hours of real-time videos of children subjected to sexual encounters, and as long as those images are not downloaded, printed or further distributed, such conduct is not proscribed.62

Although, Judge Graffeo concedes that a revision by the legislature may be necessary to further evolve the statutory language so that it explicitly includes the possession of intangible property, such as the digital format found on the Internet,63 she correctly argues that the term “control” is not hindered by the current statutory language.64  Because it is possible to control something intangible such as an Internet webpage, the concurring opinion correctly asserts that when a person uses the Internet to access a site containing child pornography, he or she must engage in a “a variety of decisions that exemplify control over the displayed depiction.”65  The viewer may decide to continue observing the image for a period of time, decide to delete, save, download, print the image, or even move on to another image or website.66  This litany of decisions is what gives the viewer “control” over the child pornography and, in turn, satisfies the requisite knowing possession element of Penal Law Section 263.16.  In other words, “the viewer exercises power over the image because he manages and controls what happens to it.”67

Moreover, Judge Graffeo emphasizes something that the majority neglected to address, the inherent harm that is inflicted upon child victims whose images are placed on the Internet and thus, made highly accessible to the public. The Court of Appeals judge avers, “It is beyond dispute that exploitation occurs regardless of whether child pornography is in a tangible format or on line, and an image does not become any less exploitive because it is viewed on a computer.”68  Thus, in conclusion, the majority opinion failed to best protect the victims of child pornography crimes.  Instead, the court advanced the means by which sexual predators can feed their depraved habit in viewing sexually explicit images and videos of children on the Internet.  Given the pervasiveness of the child pornography industry on the Internet, this problem will only be exacerbated by the existence of the Court of Appeals decision in People v. Kent.  As a result, we must all wait and see how the legislature deals with addressing this controversial piece of decisional law in amending the language of New York’s penal law.





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  1. See People v. Kent, 19 N.Y.3d 290 (N.Y. 2012) (holding that the mere act accessing and viewing child pornography on the internet does not constitute possession and/or procurement of child pornography as intended by the New York State legislature).
  2. People v. Kent, 910 N.Y.S.2d 78 (2d Dep’t 2010).
  3. Kent, 19 N.Y.3d  at 299.
  4. Id. at 302-03 (“We do not agree that ‘purposefully making [child pornography] appear on the computer screen—for however long the defendant elects to view the image—itself constitutes knowing control.’ ”) (citing Kent, 910 N.Y.S.2d at 66) (quoting Commonwealth v. Diodoro, 970 A.2d 1100, 1107 (P.A. 2009).
  5. N.Y. Penal Law § 261.15 (McKinney 2012).
  6. Id.
  7. N.Y. Penal Law § 263.16 (McKinney 2012).
  8. See Kent, 19 N.Y.3d  at 305 (Graffeo, J., concurring) ( explaining that the legislature enacted these provisions “in an effort to ‘eradicate child pornography” in all its forms and “thereby combat the sexual exploitation of children.’ ”) (quoting People v. Keyes, 552 N.E.2d 617, 619 (N.Y. 1990).
  9. Kent, 910 N.Y.S.2d at 81.
  10. Id.
  11. Id.
  12. Id.
  13. Id.
  14. Kent, 910 N.Y.S.2d at 81.
  15. Id.
  16. Id. at 81-82.
  17. Id. at 82.
  18. Id.
  19. Kent, 910 N.Y.S.2d at 82.
  20. Id.
  21. Id.
  22. Kent, 19 N.Y.3d at 295.
  23. Kent, 910 N.Y.S.2d at 82.
  24. Id. at 83.
  25. Id.
  26. Id.
  27. Id.
  28. Kent, 910 N.Y.S.2d at 83.
  29. Id. at 84.
  30. Id.
  31. Id.
  32. Id.
  33. See Kent, 910 N.Y.S.2d at 84 (explaining that some of the images recovered were of children that the National Center for Missing and Exploited Children had identified as known victims of child pornography).
  34. Id. at 84-85.
  35. Kent, 19 N.Y.3d at 298.
  36. Kent, 910 N.Y.S.2d at 87.
  37. Id.
  38. Id. at 89 (“Whether the defendant knowingly or inadvertently accessed that Web page, and whether he knew that the Web page would contain child pornography when he accessed the site, are issues of fact which require an examination of the totality of the direct and circumstantial evidence.”)
  39. Id.
  40. Id.
  41. Kent, 910 N.Y.S.2d at 89.
  42. Id.
  43. Id.
  44. Id.
  45. Id.
  46. Kent, 910 N.Y.S.2d at 89-90.
  47. Kent, 19 N.Y.3d at 299.
  48. Id. at 304 (Graffeo, J., concurring).
  49. Id. at 295. (holding “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.”).
  50. Id. at 302 (citing United States v. Kuchinski, 469 F.3d 853, 863 (2006)).
  51. Id. at 302-03. (citing Kent, 910 N.Y.S.2d at 88) (quoting Diodoro, 970 A.2d at 1107).
  52. Kent, 19 N.Y.3d at 303.
  53. Id.
  54. Id.
  55. Id. at 303-04. (quoting Keyes, 552 N.E.2d at 619).
  56. Id. at 304.
  57. Kent, 19 N.Y.3d at 299-300 (“we have not had occasion to determine the extent to which the current statutory scheme applies to child pornography distributed and consumed over the Internet, a forum unknown to legislative drafters 30 years ago and which now provides a readily accessible and expansive marketplace for illicit material.”).
  58. Keyes, 552 N.Ed.2d at 620.
  59. Kent, 19 N.Y.3d at 305 (Graffeo, J., concurring).
  60. Id.
  61. Id. (citing People v. Fraser, 752 N.E.2d 244,249-50 (N.Y. 2001).
  62. Id. at 307.
  63. Id.
  64. Kent, 19 N.Y.3d at 308 (Graffeo, J., concurring).
  65. Id.
  66. Id.
  67. Id.
  68. Id. at 310.