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Queens Possession of Child Pornography

Child pornography is a problem that law enforcement has been tackling for decades. In recent years it has become an even greater problem due to the proliferation of digital technology. New York Penal Law includes 6 different criminal offenses related to child pornography. Four of these offenses make it illegal to promote or create child pornography while the other two criminalize possessing child pornography. Because of the magnitude of the problem and because the victims are children, law enforcement aggressively pursues and prosecutes those suspected of possessing child pornography. As a result, if you are convicted of a child pornography charge you could end up spending a substantial amount of time in prison. Crimes related to child pornography are classified as sex crimes. This means that if you are convicted in addition to being sentenced to jail, prison, or probation, you will be labeled a sex offender and will be required to follow the requirements related to sex offender registration. Therefore, if you have been charged with possession of child pornography you should immediately contact an experienced Queens Possession of Child Pornography Lawyer who is aware of defenses available to fight child pornography charges and who will support and aggressively defend you against the charges.

Possession of Child Pornography Laws

New York law uses the term "sexual performance by a child" to describe what is commonly referred to child pornography. Sexual performance by a child means any type of sexual conduct by a child who is less than 16 or 17 years old. It can mean actual sexual conduct such as sexual intercourse, oral sex, masturbation or lewd exhibition of genitals. It can also refer to simulated sexual acts. N.Y. Pen Law § 263.00. The term "performance" means a play, motion picture, photography, dance or any other visual representation exhibited before an audience. In People v Horner, 300 A.D.2d 841 (2002), the defendant was charged with possessing child pornography based on having over 100 photographs featuring young boys who were nude or wearing very little clothing.

There are two possession of child pornography offenses: possessing a sexual performance by a child and possessing an obscene performance by a child. The prosecutor will charge you with possessing a sexual performance by a child if you knowingly possess material that contains a sexual performance by a child who is less than 16 years old. "Obscene" is defined as material that most people would find appealing to the prurient interest in sex and that has no serious literary, political, scientific or artistic value. 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 physically having it on your person. 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 view it sometime in the future then you can be charged with a possession of child pornography offense. For example, in People v. Vanness, 2013 NY Slip Op 03506 (2013), the police found child pornography on the defendant Michael Vanness' computer. Vanness was indicted on three counts of possessing a sexual performance by a child even though he did not have physical copies of child pornography on his person and even though there was no evidence that Vanness had viewed the images.

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. If you thought that the individual in the sexual performance was an adult, you have a valid defense to a possession of child pornography charge. N.Y. Pen Law § 263.20(1). Your belief that the child was an adult had to have been reasonable. The court, however, will look beyond your testimony that the child appeared to be an adult. The court will take into consideration 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 during which you must come in contact with child pornography, you may have a defense to a charge of possessing child pornography. For example, if one of your responsibilities as a librarian is to catalog a volume that includes child pornography, then it will be difficult for a prosecutor to convict you on a charge of possession of child pornography. In such a case, your possession of child pornography is incidental to your job. N.Y. Pen Law § 263.20

Consequences of a Child Pornography Conviction

If you are convicted of possessing a sexual performance by a child charge you could be sentenced to up to 4 years in prison. Your sentence may also include probation. Because possession of child pornography is a felony sex crime, the mandatory probation period is 10 years. In People v. Gavazzi, 84 AD3d 1427 (2011), the defendant plead guilty to promoting a sexual performance by a child and possessing a sexual performance by a child. While he was sentenced to only 90 days in jail, he was also sentenced to 10 years of probation. Similarly, in People v. Mauro, 2014 NY Slip Op 02470, defendant Bruce Mauro plead guilty to possessing an obscene sexual performance by a child. His sentence did not include jail or prison, but 10 years of probation.

While no one wants to go prison, a sentence of probation does not mean that you will be completely "free." With probation comes a series of rules that some may find quite challenging. For example, some of the rules may include that you must have a job, you must stay away from other convicted felons, you must stay away from disreputable places, you must follow a curfew, you must refrain from drinking excessive alcohol, you must not use or possess controlled substances, you must report to your probation officer regularly and you must not leave the jurisdiction without permission. 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 part of your punishment for being convicted of possession of child pornography is that you will have to register as a sex offender under the Sex Offender Registration Act (SORA). SORA requires those convicted for sex crimes register personal, identifying information with law enforcement. Furthermore, you will be required to regularly verify your address and other information, as well as update your photograph on a regular schedule. The type of information that you must register and verify include your name, aliases, home, work and school addresses, your crime, your sentence, your internet and social media identifiers and contacts, 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. Failure to follow SORA requirements is a crime. 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. You could be sentenced to many years in prison and you will be required to register as a sex offender. 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 sex crimes such as possessing 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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