Hearing Ordered For Child Porn Conviction

The New York Appellate Division for the First Judicial Department concluded that an attorney’s conviction of a serious crime did not equate to a New York felony that would require automatic disbarment.

Rather, the court continued an interim suspension and appointed a referee to recommend appropriate discipline.

The offense

On November 30, 2021, respondent was convicted, upon his plea of guilty, in the Superior Court of New Jersey of endangering the welfare of a child (possession of child sexual exploitation/abuse material, 100 or more items — third degree), in violation of New Jersey Statutes § 2C:24-4b(5)(b)(iii). On February 18, 2022, respondent was sentenced to two years’ probation, as a condition of which he was to, inter alia, continue in clinical psychosexual treatment and not have any unsupervised contact with minors under the age of 18 years old. The sentencing court also imposed $905 in mandatory assessments and fines.

Respondent’s conviction stemmed from his having been found in possession of child pornography in 2016. The superseding indictment to which respondent pleaded guilty charged him with possessing, viewing, or controlling 100 or more items depicting the sexual exploitation of a child, as defined by New Jersey Statutes § 2C:24-4b(1). In his plea allocution, respondent admitted to knowingly possessing 100 or more images, videos, or other materials commonly referred to as child pornography. Respondent admitted that these images and videos depicted children engaged in sexual intercourse. Neither the superseding indictment nor respondent’s plea allocution states the age of any child in the images, videos, or other materials.

Dissimilarity

This Court has not previously compared the two statutes at issue. Although both statutes proscribe the possession of child pornography, the New Jersey statute defines a child as “any person under 18 years of age,” whereas Penal Law § 263.16 prohibits depictions of sexual conduct “by a child less than sixteen years of age.” Thus, the two statutes are facially dissimilar (see Matter of Zeas, 178 AD3d 66, 68 [1st Dept 2019]; Simels, 94 AD3d at 111-112).

When an attorney possesses at least one image depicting a child under the age of 16, both this Court and the Second Department have found a federal conviction relating to child pornography essentially similar to a conviction under Penal Law § 263.16 (see Matter of Serenbetz, 144 AD3d 21, 22-23 [1st Dept 2016]; Matter of Cooney, 205 AD3d 65, 66-68 [2d Dept 2022]; Matter of Groezinger, 77 AD3d 117, 118-119 [2d Dept 2010]; Matter of Lipton, 51 AD3d 207, 208-209 [2d Dept 2008]). Thus, if the record established that at least one image depicted a child under the age of 16 years, respondent would be automatically disbarred. No evidence in the record, however, refers to the age of any child depicted in respondent’s images.

We have not previously addressed whether, in the absence of any such evidence, a child pornography statute with an age threshold of 18 is essentially similar to Penal Law § 263.16. Although we have previously found essential similarity without referring to the children’s age, we did so on the basis of plea admissions in conjunction with the charging documents (see Matter of Duffy, 159 AD3d 98, 100 [1st Dept 2018]; Matter of De Sear, 124 AD3d 139, 142 [1st Dept 2014]). The issue before us was not whether the two convictions were essentially similar despite the difference in age threshold.

Here, unlike in Duffy and De Sear, the indictment and guilty plea do not supply the missing element for essential similarity (see Matter of Mahoney, 3 AD3d 197, 199-200 [1st Dept 2004]). On the limited record before us, we cannot find that respondent’s offense would constitute a felony if committed in New York.

Here, unlike in Duffy and De Sear, the indictment and guilty plea do not supply the missing element for essential similarity.

(Mike Frisch)