You are here: / / THE STIPULATION SIGNED BY DEFENSE COUNSEL, IN AN EFFORT TO AVOID SHOWING...
, , ,

THE STIPULATION SIGNED BY DEFENSE COUNSEL, IN AN EFFORT TO AVOID SHOWING CHILD PORNOGRAPHY TO THE JURY, EFFECTIVELY REMOVED THE MENS REA ELEMENT OF THE CHILD PORNOGRAPHY CHARGES FROM THE JURY’S CONSIDERATION; CONVICTION REVERSED ON INEFFECTIVE ASSISTANCE GROUNDS (SECOND DEPT). ​

The Second Department, reversing defendant’s child-pornography conviction, over a two-justice dissent, determined that the stipulation signed by defense counsel and presented to the jury (in an effort to avoid showing the pornography to the jury) effectively removed from the jury consideration of the mens rea element. Therefore, defendant did not receive effective assistance of counsel:

A few days before the trial commenced, defense counsel and the prosecutor executed a stipulation entitled “Stipulation Elements of Crime.” Among other things, they stipulated to the fact that certain videos underlying the counts of promoting a sexual performance by a child “depicted . . . a performance, which included sexual conduct by a child less than 17 years of age,” and similarly stipulated as to the content of certain images underlying the counts of possessing a sexual performance by a child. …

… [T]he stipulation went on to state, in pertinent part, that “whoever possessed each of the . . . videos, promoted a performance, which included sexual conduct by a child . . . with knowledge of the character and content of the videos,” and “whoever possessed these videos and images, knowingly had in his or her possession or control, or knowingly accessed with intent to view, a performance which included sexual conduct by a child” … . A reasonable reading of this additional language in the stipulation is that possession alone is tantamount to promoting a performance with knowledge “of the character and content of” the videos, which is required to support a conviction of promoting a sexual performance by a child under Penal Law § 263.15, and that possession alone is tantamount to knowing “possession or control” or “access[ ] with intent to view,” which is required to support a conviction of possessing a sexual performance by a child under Penal Law § 263.16. Thus, this additional language in the stipulation set forth definitions of the crimes that had no mens rea element … , under which possession alone could support a guilty verdict for each crime. People v Guerra, 2024 NY Slip Op 04978, Second Dept 10-9-24

Practice Point: Defense counsel signed a stipulation in an effort to avoid showing child pornography to the jury. The majority concluded the stipulation effectively eliminated the mens rea element from the jury’s consideration. The conviction was reversed on ineffective assistance grounds.

 

You might also like
DUCT TAPE USED TO SILENCE AND RESTRAIN THE VICTIM WAS A DANGEROUS INSTRUMENT WITHIN THE MEANING OF THE ROBBERY FIRST STATUTE, KIDNAPPING BASED UPON THE RESTRAINT OF THE VICTIM DID NOT MERGE WITH ROBBERY, DISSENT DISAGREED (SECOND DEPT).
THE LOBBY WAS MOPPED WITH A SOAP-LIKE SUBSTANCE AN HOUR BEFORE PLAINTIFF’S SLIP AND FALL AND PLAINTIFF TESTIFIED SHE NOTICED THE FLOOR WAS WET AND SMELLED OF CLEANING FLUID AFTER SHE FELL; THERE WAS A QUESTION OF FACT WHETHER DEFENDANT BUILDING OWNER CREATED THE DANGEROUS CONDITION (SECOND DEPT).
MEMBERSHIP IN LIMITED LIABILITY COMPANY CAN BE REACHED BY A JUDGMENT CREDITOR; CHARGING ORDER, RATHER THAN ASSIGNMENT OF THE MEMBERSHIP INTEREST TO THE CREDITOR, IS AN APPROPRIATE REMEDY.
PLAINTIFF’S INJURY DID NOT INVOLVE THE TYPE OF ELEVATION HAZARD CONTEMPLATED BY LABOR LAW 240 (1) AND DEFENDANTS DID NOT EXERCISE A LEVEL OF SUPERVISORY CONTROL SUFFICIENT TO TRIGGER LIABILITY UNDER LABOR LAW 200 (SECOND DEPT).
ALTHOUGH DEFENDANT COMPLETED HIS SENTENCE HE IS ENTITLED TO A DETERMINATION WHETHER HE SHOULD BE ADJUDICATED A YOUTHFUL OFFENDER; THE ORDER OF PROTECTION EXCEEDED THE STATUTORY TIME LIMIT (SECOND DEPT).
ALTHOUGH THE INSURER DID NOT RECEIVE NOTICE OF THE CLAIM UNTIL 23 MONTHS AFTER THE CAR ACCIDENT, IT WAS NOT PREJUDICED BY THE DELAY AND DID NOT COMMENCE A TIMELY INVESTIGATION OF THE CLAIM; THE DISCLAIMER OF COVERAGE WAS INVALID (SECOND DEPT).
THE COVID EXECUTIVE ORDERS TOLLING THE STATUTES OF LIMITATIONS APPLY TO THE TIME FOR ANSWERING A MOTION FOR SUMMARY JUDGMENT IN LIEU OF COMPLAINT (SECOND DEPT).
Agents of Property Owner Can Be Liable Under Labor Law 240(1)

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

DISMISSAL OF THE COMPLAINT IN THIS FORECLOSURE ACTION WAS NOT IN COMPLIANCE... PLAINTIFF FELL FROM AN UNSECURED LADDER WHEN STRUCK BY FALLING OBJECTS; PLAINTIFF...