ALBANY, N.Y. -- A "glaring loophole" in New York Penal Law prohibiting child pornography was closed Friday with the governor's signature.
The new legislation amends existing law and makes purposefully accessing a website "with intent to view" child pornography a class E felony.
Formerly, an appellate court decision held that existing law did not prohibit "accessing and viewing" child pornography on the Internet. The unamended law, enacted in 1996, prohibited only possession and promotion -- and included a narrower definition for the former.
"With the strengthening of these laws, we eliminate any loophole to better protect our children from predators," said Gov. Andrew Cuomo in a written release Friday. "This new law stops criminals who have been able to escape prosecution and punishment for too long."
The May 8 New York Court of Appeals decision maintained that an instance of an individual viewing child pornography on a website did not constitute "possession" without an additional affirmative act -- like downloading, printing, or saving the material -- whether or not the images were automatically saved in the computer's temporary cache.
In its opinion in People v. Kent, the court found temporary cached images were "not enough to constitute ... procurement or possession" of illegal material. To find otherwise, the court ruled, would extend the reach of state law to prohibit viewing of the material, which was not formally a criminal act under the 1996 law.
The May court case dismissed two of 143 counts of possession of child pornography for a former Marist College professor convicted in 2009, on the basis that he was unaware of some saved, cached images that were used against him during trial.
The maximum penalty for the class E felony possession charge is three to four years in prison.
-- Zeke Wright