29 May 2012

How not to do a drive-by

People v Johnson, 2012 NY Slip Op 02965 [4th Dept 2012]

I'm no expert, but I think the drive-by shooting (as opposed to a regular, on-foot shooting) has three distinct advantages: there is a bit of intimidation involved, what with the high speed and the surprise; being in a car allows the shooter to get away from the scene quickly, and; the car provides some cover for the shooter, making identification more difficult and providing some cover from any return fire.* The defendant and his compatriot in Johnson managed to do a drive-by that accomplished none of those goals, and it was down to their choice of a vehicle: a moped. As explained by the Court, "just prior to the shooting defendant was driving a moped on which the defendant was a passenger. Immediately before the codefendant fired a shot or shot toward a vehicle, defendant stopped the moped." Probably best not to use a vehicle that you actually need to stop in order to fire your weapon. You just end up looking like these guys:

On the plus side, the moped allowed the defendant to "swerve" and "maneuver" around some police cars before being caught. The defendant--the driver of the moped--argued on appeal that the evidence was insufficient to support his conviction for possessing the weapon fired by his co-defendant. The Fourth Department held that it could be inferred from the evidence that "defendant was aware that the codefendant had a loaded firearm, and that he aided the codefendant in that possession inasmuch as he stopped the moped in order for the codefendant to be able to line up his target and fire." Ergo, accomplice liability. * It is possible I have given this too much thought.

24 May 2012

CA: Temporary internet cache files not "possessed"

People v Kent, 2012 NY Slip Op 03572 [available here]

First, a welcome to any new readers who found me by my "Up & Coming Attorney" profile in the Daily Record. Next, an apology and a warning: my first post as an U&C'er discusses a case involving child pornography. Feel free to skip it and start with something silly. I won't be offended.

If you are still reading, chances are it is your job to defend people accused of possessing child pornography. The vast majority of prosecutions involve images and videos obtained over the internet and stored on a computer. To put it mildly, the law has not done a good job of keeping up with the pace of technology. The current statute criminalizing possession of child pornography was written, for the most part, in 1977. The definition of "possession" reflects the nature of the crime in the late 1970s, and was established if a defendant "knowingly has in his possession or control" an item constituting child pornography. When the realm of material was limited to magazines, photographs, and video tapes, this definition was perfectly serviceable and was not difficult to apply.

Enter the internet. What constitutes "possession" of child pornography when the material is accessed and viewed over the internet?

The Kent case started, like these cases often do, when Mr. Kent's computer went kaput and required repair by his employer's IT department. In the course of fixing the computer, the IT guys discovered a folder containing image files of "scantily clad, prepubescent girls in provocative poses." Creepy, but not illegal. Enough to warrant a call to your friendly neighborhood police department? Absolutely. The defendant's employer consented to a full scan of the computer's hard drive, and, well, you can guess how that turned out.

Among other things, the scan revealed child pornography images in the web browser's cache folder. As explained by the Court, a "cache contains images or portions of a Web page that are automatically stored when that page is visited and displayed on the computer screen; if the user visits the Web page again at a later date, the images are recalled from the cache rather than being pulled from the Internet, allowing the page to load more quickly." There was no evidence that "defendant was aware either of the cache function of his computer or that any of these files were stored in the cache." Mr. Kent was indicted for possessing child pornography based on the cache files, convicted after trial, and his conviction was upheld by the Third Department. That court held the cache files were proof that defendant "knowingly accessed the Web page and displayed it on his computer screen . . . establishing his dominion and control over the images."

The Court of Appeals, in a majority opinion by Judge Ciparick, disagreed and held "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. To hold otherwise, would extend the reach of article 263 to conduct--viewing--that our Legislature has not deemed criminal."

This decision will likely trigger an overdue overhaul of New York's child pornography laws. The comparable federal laws criminalize not only possession, but also accessing child pornography with the intent to view it.

But lest you think that Mr. Kent's victory was complete, he was also convicted for possessing child pornography files that he deleted from his hard drive prior to turning it over to the IT department for repair. The police forensic scan found the files in the un-allocated part of Mr. Kent's hard drive, where "deleted" files go in little bits and pieces. A computer's allocated space contains those files that have not been deleted. The Court held that, if a child pornography file is in the un-allocated space, it is reasonable to infer that, at one point, the defendant downloaded and stored that file on his computer before attempting to delete it, and that downloading the file was a sufficient affirmative act to establish possession.