People v. Kent

In People v. Kent (19 NY3d 290 [2012]) the Court held that a person who had simply viewed child pornography without knowing that such pornography had been stored in his computer's "cache" could not be guilty of promoting or possessing that child pornography and therefore dismissed two counts of a multi-count conviction on that ground. The Court described a web "cache" as a file which "contains images or portions of a Web page that are automatically stored when that page is visited and displayed on the computer screen" (19 NY3d at 296). The Court noted that federal decisions had held that to be guilty of knowingly possessing child pornography, "such images must be connected to something tangible (e.g., the hard drive), as they are when stored in a cache, and that the defendant must be aware of that connection." (19 NY3d at 301.) The clear connotation of this passage is that the images themselves (as opposed to what those images might be connected to) were not "tangible." Judge Graffeo, concurring in the judgment, made this point explicitly: "Since child pornography on the Internet is digital in format, it is intangible in nature and therefore cannot be 'possessed' as that term is currently defined by the Penal Law." (19 NY3d at 307 .) Continuing, Judge Graffeo argued, it was nevertheless possible to "control" an "intangible" child pornographic image. Such an intangible item would become tangible only once it was printed: "It is certainly possible to control something that is intangible--a fact that the majority concedes in accepting that Penal Law 263.16 applies to the saving or downloading of child pornography onto a computer hard drive. When using the Internet, a person must first decide to search for Web sites that contain child pornography and, once they are located, to choose a particular item to observe. Once the desired image appears on the screen, the user must then engage in a variety of decisions that exemplify control over the displayed depiction: continue looking at the image or delete it; decide how long to view it; once the viewing is complete, to keep the image in its own tab or browser window, or simply move on to some other image or Web page; save the image to the hard drive or some other device; or print it in a tangible format." (19 NY3d at 308 [Graffeo, J., concurring].)