You are here: / / WHEN DEFENSE COUNSEL REALIZED THE STIPULATION SHE HAD SIGNED EFFECTIVELY...
, ,

WHEN DEFENSE COUNSEL REALIZED THE STIPULATION SHE HAD SIGNED EFFECTIVELY EQUATED POSSESSION OF THE LAPTOP WITH POSSESSION OF THE CHILD PORNOGRAPHY FOUND ON THE LAPTOP SHE MOVED FOR A MISTRIAL ARGUING SHE HAD PROVIDED INEFFECTIVE ASSISTANCE; THE APPELLATE DIVISION AND THE COURT OF APPEALS AGREED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, affirming the Appellate Division, and agreeing with defense counsel’s own trial argument that her signing the stipulation constituted ineffective assistance, determined the stipulation in this child pornography case essentially equated possession of the laptop with possession of child pornography found on the laptop. Defendant asserted that he found the laptop in the garbage and that any child pornography was placed there by someone else:

Defense counsel’s decision to sign paragraphs 4 and 5 of the stipulation … deprived the defendant of meaningful representation. On their face, paragraphs 4 and 5 may be read to eliminate the crimes’ mens rea requirements—the very elements on which the defense theory rested—contrary to the court’s instruction that to convict the defendant of possessing the CSAM [child sexual abuse material], the jury had to conclude beyond a reasonable doubt that he committed the requisite “affirmative acts.” So understood, the stipulation would have undermined the defendant’s core contention that he possessed the laptop without knowing it contained the CSAM. … [P]aragraphs 4 and 5, which provide that “whoever possessed” the videos “promoted” a sexual performance by a child “with knowledge of the character and content of the videos,” and that “whoever possessed” the images did so “knowingly,” went further than was necessary … . … [T]he record reveals no other strategic reason for agreeing to those paragraphs’ vital legal concessions. * * *

… [I]n the specific circumstances of this case, where the defendant conceded physical possession of the laptop and the images in the unallocated space were repeatedly described as “on the laptop” by the parties, the witnesses, and the stipulation itself, the stipulation could have allowed the jury to conclude that the defendant’s physical possession of the laptop equated to his knowing possession of the images in the unallocated space. As for the video counts, although defense counsel contended that the defendant had never possessed the videos at all, the theory of the People’s case was that the same person shared and downloaded both the videos and images. Thus, the stipulation’s concession as to the image counts could well have tainted the jury’s deliberations on video counts.  People v Guerra, 2026 NY Slip Op 03905, CtApp 6-18-26

Practice Point: Consult this opinion for insight into what the People must prove to demonstrate the possessor of a laptop “possesses” child pornography found on the laptop. Merely viewing is not possessing. The People must prove defendant “exercised dominion and control” over the pornography by downloading or printing it for example. Here the defendant asserted he found the laptop in the garbage and any pornography found on the laptop was not put there by him.

 

You might also like
SANCTIONS FOR NEGLIGENT SPOLIATION OF EVIDENCE REQUIRE A SHOWING OF THE RELEVANCE OF THE LOST EVIDENCE; AN ADVERSE INFERENCE JURY INSTRUCTION MAY BE APPROPRIATE FOR NEGLIGENT SPOLIATION.
THE CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY ISSUED BY THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) EXEMPTED THE GAS PIPELINE COMPANY FROM ANY REVIEW REQUIREMENTS OF THE EMINENT DOMAIN PROCEDURE LAW (EDPL); THE COMPANY WAS FREE TO EXERCISE EMINENT DOMAIN OF THE LAND IN DISPUTE (CT APP).
Hearing Required to Determine If Criminal Investigation of Defense Counsel Affected the Conduct of the Defense (Re: CPL 440.10 Motion to Vacate the Conviction)
Class Action Mechanism Is Available Where the Relevant Statute Imposes a Non-Mandatory Penalty and the Penalty Is Waived by the Class
DIRECT APPEAL CANNOT BE DISMISSED BASED UPON THE APPELLANT’S INVOLUNTARY DEPORTATION.
GRANDPARENTS, WITH WHOM THE CHILD HAD RESIDED FOR TEN YEARS, HAD STANDING TO SEEK CUSTODY OF THE CHILD; THERE IS NO REQUIREMENT THAT THE 24-MONTH SEPARATION OF PARENT AND CHILD REQUIRED BY THE “GRANDPARENT STANDING” STATUTE BE CHARACTERIZED BY A COMPLETE LACK OF CONTACT BETWEEN PARENT AND CHILD.
NEW YORK CITY POLICE DEPARTMENT, IN RESPONSE TO A FREEDOM OF INFORMATION LAW (FOIL) REQUEST, PROPERLY REFUSED TO CONFIRM OR DENY THE EXISTENCE OF SURVEILLANCE RECORDS ON COUNTERTERRORISM GROUNDS (CT APP).
THE JURY NOTE REQUESTED THE “DEFINITIONS” OF THE CHARGED OFFENSES; DEFENSE COUNSEL ASKED THE JUDGE TO ALSO REREAD THE JUSTIFICATION INSTRUCTION IN THIS MURDER CASE; THE JUDGE REFUSED; BECAUSE THE JURY’S NOTE WAS SPECIFIC AND DID NOT REQUEST THE JUSTIFICATION INSTRUCTION, THE JUDGE PROPERLY DENIED DEFENSE COUNSEL’S REQUEST (CT APP).

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

DEFENDANT HAD REQUESTED NEW COUNSEL AND ARGUED THE JUDGE DID NOT MAKE THE PROPER... THE DOCTRINE OF EQUITABLE ESTOPPEL SHOULD NOT HAVE BEEN APPLIED TO PRECLUDE...