What a difference a decade makes. Ten years ago, the New York Court of Appeals decided 42 criminal law cases, only nine of which were non-unanimous decisions. This past term, however, the court decided 98 criminal law cases, of which 33 were non-unanimous. Eleven cases stand out as noteworthy decisions from the term.
Possession
In People v. Kent, the court considered the scope of two statutesPromoting a Sexual Performance by a Child (Penal Law §263.15) and Possessing a Sexual Performance by a Child (Penal Law §263.16)both of which require proof that a defendant “possessed” child pornography.1 The defendant, a professor at Marist College, was convicted of 136 counts involving child pornography: two of viewing a webpage and 134 of “downloading or saving” a video and other pornographic images. The Court of Appeals upheld all of the defendant’s convictions except for the two viewing-only counts. For the majority, the key was that “merely viewing web images of child pornography does not…constitute possession…within the meaning of our Penal Law.” Rather, “some affirmative act is required (printing, saving, downloading, etc.) to show that defendant in fact exercised dominion and control over the images that were on his screen.”2
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