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New York Possession of Child Pornography

The New York Penal Code includes 6 criminal offenses related to child pornography. Four are directed to those who promote and create child pornography. The other 2 criminalize possessing child pornography. While the problem of people possessing child pornography has been an issue for ages, it has become a much greater problem with the advent and proliferation of digital technology. To combat the problem, law enforcement has developed high-tech and other creative ways to apprehend those who possess child pornography. Prosecutors aggressively prosecute those arrested and in some cases have been able to secure long prison sentences. In addition to being sentenced to probation, jail or prison, if you are convicted of an offense related to possessing child pornography, you will end up with a criminal record that includes a felony conviction, and you will be required to register as a sex offender. Furthermore, if you are arrested for possession of child pornography, not only will you face prosecution under New York State laws, you may also face federal child pornography prosecution. Therefore, if you have been accused of possession of child pornography, you should immediately contact an experienced New York Possession of Child Pornography Lawyer who is aware of defenses available to fight child pornography charges and will vigorously defend you against the charges.

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Possession of Child Pornography Laws

Under the New York Penal Code possession of child pornography is referred to as possession of a sexual performance by a child. "Sexual performance by a child" means sexual conduct by a child who is less than 16 or 17 years old. The statute describes sexual conduct as actual or simulated sexual intercourse, oral sex, anal sex, bestiality, masturbation, sadomasochism, or lewd exhibition of the genitals. N.Y. Pen Law § 263.00. "Performance" means a play, motion picture, photography, dance or any other visual representation exhibited before an audience. In People v Gavazzi, 84 AD3d 1427 (2011), the defendant was charged with possessing child pornography based on both digital and photographic images.

There are two possession of child pornography laws: possessing a sexual performance by a child and possessing an obscene performance by a child. You will be charged with possessing a sexual performance by a child if you knowingly possess material that contains a sexual performance by a child who is under 16 years old. If the sexual performance is obscene, then you will face the charge of possessing an obscene sexual performance by a child. Both crimes are Class E felonies. N.Y. Pen Law §§ 263.16, 263.11

The word "possess" does not only mean having it in your hand, pocket, purse, bag or briefcase. It means that you have control over it. It also does not mean that you must have looked at it. If you have accessed it with the intent to at some point view it, then you can be charged with a possessing a sexual performance by a child crime. In People v. Vanness, 2013 NY Slip Op 03506 (2013), the police found child pornography on the defendant's computer, leading to an indictment on three counts of possessing a sexual performance by a child.

A sexual performance will be deemed obscene if it has no artistic, political, literary or scientific value and appeals to the public's prurient interest in sex as defined by contemporary community standards. N.Y. Pen Law § 235.00(1)

If you are found to be in possession of child pornography that you found on the internet, you may also face federal child pornography charges. 18 U.S.C. § 2252. The federal statute is likely to be implicated any time images are download from the internet, of if you receive child pornography through the mail.

Defenses to Possession of Child Pornography Charges

While there may be a variety of defenses based on the facts of your case, the statute includes 2 defenses:

Age Mistake. If you had a reasonable belief that the person in the sexual performance was not a child under the age of 17, but in fact an adult, you have a valid defense to a possession of child pornography charge. N.Y. Pen Law § 263.20(1). The court, however, will not take your word for it that you believed the person was older. The court will investigate your contention by considering the appearance of the child, witness testimony, medical evidence, and other pertinent evidence. N.Y. Pen Law § 263.25

Occupation. If you have a job that incidentally requires you to possess child pornography and you do so in the course of your employment, you have a valid defense to a charge of possessing child pornography. For example, if you are a librarian and you are tasked with the job of cataloging a volume that includes child pornography, then a prosecutor would be hard pressed to find the intent necessary to convict you of possession of child pornography. N.Y. Pen Law § 263.20

Consequences of a Child Pornography Conviction

If you are convicted of a charge of possessing a sexual performance by a child or possessing an obscene sexual performance by a child, you could be sentenced to up to 4 years in prison, as each crime is a Class E felony. In addition to a prison sentence, the judge may also decide to sentence you to probation, or both prison and probation. Since the crime of possessing a sexual performance by a child is both a felony and a sex crime, if you receive probation as all or part of your sentence, your probation sentence will be 10 years. In People v Gavazzi, the defendant was sentenced to 90 days in jail and 10 years of probation. Similarly, in People v. Mauro, 2014 NY Slip Op 02470, defendant Bruce Mauro was sentenced to only 10 years of probation for a conviction for possessing a sexual performance by a child. If you are convicted of violating the federal statute, the possible sentence is much more severe as you could face up to 20 years in prison.

While a probation as a sentence is preferable to spending years in prison, probation is not without challenges. While on probation you will be required to follow a set of strict rules. Some of the rules you may be required to following include: you must have a job, you must stay away from disreputable people, you must follow a curfew, you must submit to warrantless searches, you must complete a drug education program, and you must not commit another crime. If you break any of the rules, your probation officer may violate you and a judge may revoke your probation and resentence you to prison.

Another challenging consequence of a possession of child pornography conviction is that you will have to register as a sex offender under the Sex Offender Registration Act (SORA). SORA requires sex offenders to register personal, identifying information with a designated law enforcement agency upon conviction or upon release from prison. It also has ongoing requirements that you verify your address and other information on a regular basis. The type of information that you must register and verify include your name, aliases, home address, work address, school address, your crime, your sentence, your email address, your online screen names, your photograph, and other indentifying details. If you move, change your email address, or get a new screen name, you must inform law enforcement within 10 days. Under SORA you will have to register for either 20 years or for the rest of your life.

Being charged with possessing child pornography is a very serious as you may face both state and federal prosecution. You could be sentenced to 20 years in prison. For this reason if you are facing possession of child pornography charges you should immediately consult an experienced New York Possession of Child Pornography Lawyer. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully representing clients in New York criminal courts charged with possessing, using and promoting child pornography, child molestation, statutory rape, child sexual assault, sex with a minor, public lewdness, indecent exposure, endangering the welfare of a child as well as other serious crimes. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those accused of sex crimes in the following locations:

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