In May of 2012, New York’s highest court, the Court of Appeals, rendered a decision that a Marist College professor could not be held criminally responsible for the presence of child pornography on the hard drive of his computer. The Court held, the police and the prosecutors failed to show he knew the page had been assigned to the unused space on his computer.
Judge Carmen Beauchamp-Ciparick, in a majority opinion, in the case of People v. Kent, stated while James Kent had a theoretical ability to exercise dominion and control over the child pornographic images, that potential control was not enough to constitute “the procurement or possession” thereby not meeting the standard of a violation of the New York Penal law. She further stated, “some affirmative act is required (printing, saving, downloading, etc.) to show the defendant in fact exercised dominion and control over the images that were on his screen.” “To hold otherwise, would extend the reach of the [Penal Law] article 263 to conduct – viewing – that our legislature had not deemed criminal.” All criminal charges against Mr. Kent for possession of pornographic material were dismissed.
Computer Tech Personnel Find Pornography On Mr. Kent’s Computer
In 2007, Professor Kent was arrested. Professor Kent had complained his computer was operating slowly. Computer technology personnel found the pornographic images on his computer. He was convicted in a non-jury trial and was sentence to 1 to 3 years in prison for charges of felony child promotion and possession of sexual performances by a child. He appealed the matter to New York State’s highest court which reversed his conviction.
Judge Robert Smith stated, in his concurring opinion, “this is surely a stringent punishment for someone who many would think more pathetic and then evil.” He wrote further “nor can we safely assume that bringing as many consumers as possible within the reach of the law is the most effective gave way to lessen or eliminate the trade. A policy of the most draconian enforcement directed at the most minor and peripheral of uses is no more likely to eliminate child pornography than a similar policy would be to eliminate illegal drugs.” Smith went on to write, the legislature must decide on criminality in the conduct of the case, not the courts.
