## Facts

- James D. Kent, a college professor, received a replacement office computer in 2005 after files from his prior computer were transferred to the new machine.
- In April 2007, a student IT employee ran a virus scan on Kent’s malfunctioning computer and observed thumbnail images of prepubescent girls in provocative poses within a work folder.
- The college IT staff and administrators also viewed the images; Kent denied knowledge of them.
- The college provided the hard drive to police pursuant to administrator-signed consent.
- A state police forensic examiner analyzed the drive, distinguishing between allocated space (user-accessible data) and unallocated space (deleted, user-inaccessible data).
- The examiner found: (1) child-pornography website images located in temporary internet “cache” files; (2) child-pornography images and at least one video in unallocated space, indicating the material had been downloaded/saved and later deleted; and (3) RealPlayer “play history” indicating a video titled “Arina” had been played on the computer.
- There was no direct proof that Kent knew about browser caching or that web images were automatically saved to cache files.
- Kent was charged with promoting and possessing a sexual performance by a child under New York Penal Law §§ 263.15 and 263.16.

## Issues

1. Whether evidence that child-pornography images existed only as automatically created internet cache files, without proof the defendant knew of or could control those files, is legally sufficient to prove knowing procurement or possession under Penal Law §§ 263.15 and 263.16.
2. Whether merely viewing child-pornography images on the web, without additional proof of knowing control (e.g., saving, downloading, or managing files), constitutes “procurement” or “possession” under those statutes.

## Decision

- The New York Court of Appeals modified the Appellate Division’s order and held the evidence was legally insufficient to support convictions to the extent they rested solely on cache files and on mere viewing of web images.
- The court ruled that, absent evidence the defendant was aware of the cache function and the presence of cached files, the People did not prove knowing procurement or possession of cache-resident images.
- The court further ruled that merely viewing web-based child-pornography images, without other proof, is not “possession” or “procurement” within Penal Law §§ 263.15 and 263.16.
- The court indicated that other forensic proof (such as evidence consistent with affirmatively playing a specific video file) could be more probative of knowing conduct than cache-only evidence.

## Legal Principles

- Penal Law §§ 263.15 and 263.16 require proof of knowing procurement or knowing possession; digital-file cases still require evidence of awareness and control consistent with traditional possession concepts.
- Automatically created and stored internet cache files, standing alone, do not establish knowing possession or procurement unless the People prove the defendant’s awareness of the cache mechanism and the presence of the files.
- Mere viewing of child-pornography images on the internet, without additional evidence of control or intentional acquisition (such as downloading, saving, organizing, or otherwise managing files), is insufficient to prove possession or procurement.
- Forensic distinctions between user-accessible data and user-inaccessible deleted data matter to sufficiency analysis because they bear on whether the defendant could access or control the material and whether knowing conduct can be inferred.

## Conclusion

The Court of Appeals required proof that a defendant knowingly exercised awareness and control over digital child-pornography files; cache-only evidence and simple online viewing, without more, do not satisfy New York’s statutory requirements for procurement or possession.


People v. Kent, 970 N.E.2d 833 (N.Y. 2012)