Innocent and Facing Charges That Would Have Ruined My Life
Child pornography isn't a popular subject, and some defense attorneys won't represent people charged with these types of crimes. The reality is that the production and possession of child pornography is illegal under both state and federal law. When you or somebody you love is arrested for a sex crime, you know as well as I do that you desperately need a good lawyer.
The first question a lawyer is going to ask is, "Are the charges state or federal?" It's an important question, as you are about to see.
Here is a part of the state law:
NYS Penal Law Section 263.16 Possessing a sexual performance by a child.
A person is guilty of possessing a sexual performance by a child when, knowing the character and content thereof, he knowingly has in his possession or control, or knowingly accesses with intent to view, any performance which includes sexual conduct by a child less than sixteen years of age. Possessing a sexual performance by a child is a class E felony.
As compared to a similar section of the federal law:
18 U.S.C. 2252: Certain activities relating to material involving the sexual exploitation of minors.
Any person who:
(2) knowingly receives, or distributes, any visual depiction using any means or facility of interstate or foreign commerce or that has been mailed, or has been shipped or transported in or affecting interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or through the mails, if—
(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct;
shall be punished as provided in subsection (b) of this section.
(1) Whoever violates, or attempts or conspires to violate, paragraph (1), (2), or (3) of subsection (a) shall be fined under this title and imprisoned not less than 5 years and not more than 20 years, but if such person has a prior conviction under this chapter, section 1591, chapter 71section 1591, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, or sex trafficking of children, such person shall be fined under this title and imprisoned for not less than 15 years nor more than 40 years.
A violation of the state law is punishable by up to 1 1/3 - 4 years in state prison, and that is an unusual outcome. (We recently represented a client who pled guilty to Promoting Child Pornography with a sentence promise of 8 jail weekends.) If the United States Attorney's Office for the Western District of New York had decided to charge our client in federal court for the same conduct, it would have been punishable by 5 - 20 years in federal prison.
That should give you an idea as to how serious the difference is between federal charges and state charges. If you are charged with possessing, promoting, or creating child pornography, or any other crime that might be chargeable in federal court, do not speak to law enforcement until you have spoken to an attorney. Don't "make a deal" with the police or FBI to be cooperative in exchange for "a good word with the prosecutor," because that "good word" doesn't mean anything. You have the right to remain silent, and you should use it. Then, call a criminal defense lawyer immediately. We can help. My number is (585) 485-0025, and you can call me 24/7.
Militello Law Firm, PLLC
2480 Browncroft Blvd.
Rochester, NY 14625
1 University Drive
Geneseo, NY 14454
Fax: (585) 286-3128