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Nassau County Possession of Child Pornography

N.Y. Pen. Law §§ 263.11, 263.16

Under New York law child sexual performance is the term used to refer to what has been traditionally called child pornography. A child sexual performance occurs when a child is involved in a sexual activity. The New York criminal code includes 6 offenses related to child pornography, 2 of which 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 advances in digital technology. While in the past in order to get and possess child pornography you would have to order it through the mail or find an underground retailer of it. Nowadays it can be readily secured online by a few simple clicks of your mouse. If you are charged and convicted of possessing child pornography, not only is it possible that you will end up in prison and have a permanent criminal record, you will also have the label of sex offender. In addition, you may also be subject to federal child pornography prosecution. Therefore, if you have been accused of possession of child pornography, you should immediately contact an experienced Nassau County Possession of Child Pornography Lawyer who is aware of defenses available to fight child pornography charges and will vigorously defend you against the charges.

What are New York's possession of child pornography laws?

Under the New York law 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. There terms are defined as follows:

  • Sexual intercourse. Sexual intercourse means the penetration of the vagina by the penis, even if the penetration is slight. N.Y. Pen. Law § 130.00(1).
  • Anal sex. Anal sex means contact between the penis and the anus. N.Y. Pen. Law § 130.00(2)(b).
  • Oral sex. Oral sex means contact between the mouth of one person and penis of another person, the mouth and the anus, or the mouth and the vagina or vulva. N.Y. Pen. Law § 130.00(2)(a).
  • Bestiality. Bestiality is sex conduct between a person and an animal.
  • Masturbation. Masturbation is the stimulation or manipulation of one's own genitals for sexual gratification.
  • Sado-masochistic abuse. Sad masochistic abuse is defined as flogging, beating or torture for the purposes of sexual gratification during which you are wearing undergarments, mask, or a bizarre costume. It also includes being fettered, bound or in some other way physically restrained by the person who is wearing the undergarments, mask or bizarre costume. N.Y. Pen Law § 235.20(5)
  • Performance. Performance is defined as a play, motion picture, photography, dance or any other visual representation exhibited before an audience. For example, 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. In addition, even if you erase images that you had previously downloaded or saved, if the police search your computer and are able to find evidence of images of a sexual performance by a child, then you can be charged with this crime. For example, in People v. Tucker, 944 N.Y.S.2d 383 (2012), law enforcement was able to find hundreds of images of children under the age of 16 involved in sexual activities on the defendant's hard drive, despite the existence of wipe and erase software.

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)

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

What are examples of 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

What are the consequences of a possession of 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. The exact length of your prison sentence will depend on a number of factors including, for example, whether or not you have a prior criminal record.

Probation. If you are convicted of a crime related to possession of child pornography it is possible that all or part of your sentence may include probation. Probation is a type of community supervision where you are permitted to live in the community instead of in prison, while being supervised by the Department of Corrections. While being on probation is preferable to being behind bars, probation comes with some challenges. There will be several restrictions placed on your actions and your movements, including:

  • You will be subject to a warrantless search
  • You will be subject to drug testing
  • You must be employed
  • You must support your family
  • You must stay away from disreputable people
  • You must stay away from disreputable places
  • You must not drink alcohol excessively
  • You must not use controlled substances
  • You must seek any ordered medical or mental health treatment

Most importantly, if you are on probation you cannot commit another crime. If you commit another crime or violate any other terms of your probation, you probation officer may report your conduct to the court. You will be required to appear before a judge who will decide if you did indeed violation your probation. If you did the judge may revoke your probation and resentence you to prison.

Criminal record. If you are convicted of a possession of child pornography you will have a criminal record that will remain with you for the rest of your life. While having a criminal record certainly is not the end of the world, it can make some aspects of your life more challenging. For example, because most employers will perform background checks prior to hiring, it is likely that they will discover that you have a criminal history with a felony conviction. Furthermore, you may be barred from pursuing careers in certain professions that require licensing such as practicing law, teaching, nursing or being a security guard.

In addition, your rights to own gun, serve in the military, or serve on juries may be denied or restricted. Some schools may refuse admission or ban you from living on campus. You will also not be able to receive certain government benefits such as welfare or federally funded housing. If you are not a U.S. citizen, you may be subject to deportation.

Sex offender registration. Another challenging consequence of a possession of child pornography conviction is that under New York law you will be labeled as a sex offender. Even though you have not been convicted of a rape, criminal sexual act, or other criminal that involves sexual conduct with a child under New York sex crimes statute, crimes that involve a sexual performance of a child are nonetheless considered registrable offenses 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. The court will let you know what your registration and verification duties are. N.Y. Cor. Law § 168-d. When you are released from prison or released on probation, you will be given the form to complete in order to register. You then must mail the completed form to the designed law enforcement agency within 10 days of receiving the form. N.Y. Cor. Law § 168-f. The following information is required as part of the registration.

  • Identifying Information. You must register your name, including aliases, date of birth, sex, race, height, weight, eye color, driver's license number, home address or expected home address, internet accounts and internet identifiers such as screen names and email addresses.
  • Photograph and fingerprints. You will be required to personally appear at the designated law enforcement agency to get a photograph taken. For level 3 offenders, the photograph must be updated once a year. Level 1 and 2 offenders must update their photographs every 3 years. If your appearance changes significantly, you may be required to update your photograph sooner.
  • Offense. A description of the crime for which you were convicted, the date of the conviction and the sentence imposed.
  • School. The name and address of the school in which you are enrolled or plan to enroll.
  • Employment. For level 2 and 3 offenders, the name and address of your place of employment.
  • Other information. Any other information that law enforcement deems pertinent.

N.Y. Cor. Law § 168-b.

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 depending on the level of risk you present.

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 Nassau County 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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